Recent California Family Law Appellate Decisions
GLEN L. RABENN
Certified Family Law Specialist
The following is a compilation of what the author considers to be the most significant recent California appellate court decisions affecting the practice of Family Law in California. It is intended as general information and should not be considered legal advice. Readers are encouraged to read the full texts of the summarized decisions.
The author does not represent that this summary is an all-inclusive listing of all decisions that pertain to or impact family law. In particular, this article does not list or analyze tax, dependency court, juvenile court, adoption, parentage or international custody decisions.
To obtain more detailed information you should directly contact a qualified attorney in your geographic area. If legal advice or other expert assistance is required, the services of a competent professional person should be sought.
WIFE ORDERED TO PAY $90,000 OF THE ATTORNEY FEES INCURRED BY HUSBAND IN DEFENDING A CIVIL ACTION FILED BY WIFE AGAINST HUSBAND.
In re the Marriage of Marriage of Pont
31 Cal. App. 5th 428, 242 Cal. Rptr. 3d 616
December 20, 2018
The stipulated dissolution judgment provided that if either party had to enforce the terms of the judgment, that party would be entitled to reasonable attorney fees and costs from the other party. Four years after the judgment was filed, wife filed a civil action against husband and his girlfriend. In that lawsuit, wife alleged that husband and his girlfriend had concealed the fact that community monies had been invested in a business owned by husband and the girlfriend.
The husband demurred to the complaint in the civil court, which was granted without leave to amend. Husband then filed a request in the family court for an order requiring wife to pay the fees that he had incurred in defending the civil case. The family court awarded husband $90,000, pursuant to Civil Code §1717. (Court can award fees in a lawsuit based on a contract that provides for fees for the prevailing party.) The family court decision was affirmed by the District Court of Appeals.
TRUST TRANSFER DEED, GRANTING OWNERSHIP OF A COMMUNITY PROPERTY REAL ESTATE TO WIFE’S NAME DID NOT CHANGE IT TO WIFE’S SEPARATE PROPERTY.
In re the Marriage of Begian and Sarajian
31 Cal. App. 5th 506, 242 Cal. Rptr. 3d 692
December 20, 2018
Husband, Wife and Wife’s mother were co-owners of real property in Glendale, California. The three of them executed a “Trust Transfer Deed,” which provided as follows:
“FOR NO CONSIDERATION, GRANTORS ROSE SARAJIAN, a Widow, and IDA SARAJIAN and RICHARD BEGIAN, Wife and Husband, all as joint tenants, hereby GRANT to IDA SARAJIAN, the following real property [legal description of Avonoak].” The deed stated the conveyance was not subject to a documentary transfer tax because “‘this is a bona fide gift and the grantor received nothing in return, R & T 11911.'”
In the dissolution of marriage action, the Husband claimed that the real property was community property because the Trust Transfer Deed did not alter the fact that the portion of the property in the names of Husband and Wife was community property. Wife claimed that the Trust Transfer Deed complied with Family Code §852. That section provides that community property can be transmuted to the separate property of a spouse if the deed clearly states that the character of the asset is being changed from community property to separate property.
Ruling in Husband’s favor, the trial court held that the use of the word “grant” in the deed complied with Family Code §852, thus changing the real property to Wife’s separate property. However, the District Court of Appeals reversed. It held that the deed did not, “. . . unambiguously indicate a change in character or ownership” of the real property to Wife’s separate property. The court said that the word “grant” in the document was ambiguous because the word only established Husband’s intention to transfer an interest in real property, without specifying what interest was to be transferred.
WIFE’S REQUEST FOR ATTORNEY FEES WAS PROPER, EVEN THOUGH IT WAS FILED SEVEN MONTHS AFTER HUSBAND’S REQUEST FOR CHILD CUSTODY WAS DENIED.
In re Marriage of Catherine Perow and Richard Uzelac
31 Cal. App. 5th 984, 242 Cal. Rptr. 3d 874
January 31, 2019
Husband filed two requests for custody of the minor children. Wife filed three responses, each of which included her requests for attorney fee orders against Husband. Seven months after the trial court denied Husband’s requests, Wife filed her own separate request for attorney fees. In his response, Husband asserted that Wife could not renew her request because she failed to file her own request for affirmative relief while his matter was pending.
The trial court granted Wife’s motion and ordered Husband to pay attorney fees of $149,672.12, and the District Court of Appeals affirmed. The court held that Wife’s request for attorney fees was not a request for affirmative relief that could only be raised in Husband’s matter. The court observed that the term “affirmative relief” refers to a responding party’s challenge to the “message” of the initial filing. Such requests must be brought up in response to the initial filing. A request for attorney fees, however, is an attack on the messenger, which can be filed separately by the complaining spouse.
The court also rejected Husband’s assertion that Wife waited too long to file her request for attorney fees. It held that Wife requested a fee order three times in response to Husband’s initial request. It also observed that, in making its oral ruling, the trial court reserved jurisdiction over all related issues, including attorney fees.
HUSBAND’S FORENSIC ACCOUNTANT USED AN APPROPRIATE PROCEDURE TO TRACE HUSBAND’S SEPARATE PROPERTY. TRIAL COURT REVERSED FOR BASING ITS RETROACTIVE CHILD SUPPORT ORDER FOR THE PRIOR THREE YEARS OF ON THE PARTIES’ LAST TAX RETURN THAT PREDATED THAT PERIOD. THE TRIAL COURT’S PERMANENT SPOUSAL SUPPORT ORDER WAS INSUFFICIENT BECAUSE IT WAS NOT CONSISTENT WITH THE MARITAL LIFESTYLE. TRIAL COURT ERRED IN FAILING TO AWARD WIFE ATTORNEY FEES, SOLELY ON THE BASIS THAT SHE HAD SUFFICIENT ASSETS TO PAY HER OWN FEES.
In re Marriage of Ciprari
32 Cal. App. 5th 83, 242 Cal. Rptr. 3d 900
February 6, 2019
- Monies on Deposit HUSBAND had $1,179,620 in a brokerage account at the date of marriage. During the marriage, HUSBAND deposited portions of his salary into the account. The parties disagreed on how much of the date of separation balance was community property. HUSBAND’s accountant testified that, of the $6.9 million in the account as of the date of separation, $3.7 million was traceable to HUSBAND’s separate property. In his tracing HUSBAND’s accountant carefully apportioned deposits and withdrawals between community property and HUSBAND’s separate property. The trial court held in favor of the HUSBAND and the District Court of Appeals affirmed. The court held that the “direct” and “family expense’ tracing methods were not the only means by which community/separate property tracings could be conducted. It concluded that:“The bottom line is the community was credited with any securities purchased in an account to the extent that community funds were available in that account for their purchase. To the extent community funds were not available in the account at the time an asset was purchased, the asset was characterized as separate property. And the community received the benefit of any investment, including dividends, interest, and the sale proceeds, to the same extent it owned the asset.”
- Husband’s Alleged Breach of Fiduciary Duty: During the marriage, HUSBAND deposited $160,000 of community property monies in 529 accounts for their children. He used an additional $240,000 to pay for life insurance which named the children as beneficiaries. WIFE claimed that HUSBAND violated his fiduciary duties by using community property monies in that manner. The trial court held that WIFE was aware of and consented to the use of community property monies. Thus, the use of those monies was a gift by the parties, to fulfill their estate plan agreement.
- Modification of Temporary Child Support Order: In December 2013, WIFE filed a request to modify the prior temporary child and spousal support orders. In 2016, the trial court made retroactive child support orders for three periods during the prior three years. The trial court based its ruling on the parties’ 2013 tax returns. The District Court of Appeals reversed the trial court’s decision to base its order on the parties 2013 tax returns. It held that the trial court should have used more recent tax returns, instead of limiting itself to the 2013 returns.
- Permanent Spousal Support: Husband was earning $47,000 per month, while WIFE’s earning was only $20,000. The trial court ordered HUSBAND to pay WIFE spousal support in the amount of $5,000 per month. WIFE had argued for a substantially higher amount. However, the trial court held that WIFE’s stated expenses were inflated and that the $5,000 order was sufficient. The District Court of Appeals disagreed with the finding of the trial court, holding that its order was too low, given the parties’ marital standard of living. The Court also faulted the trial court for failing to state what it found to be WIFE’s actual living expenses.
- Attorney Fees: HUSBAND and WIFE each incurred attorney fees and costs in the range of $1-1.2 million. While the case was pending, the trial court had ordered HUSBAND to make a contribution of $67,500 to wife’s fees and to pay her sanctions of $18,150. In the trial, WIFE asked the court to order HUSBAND to pay her attorney fees. The trial court denied that request, holding that WIFE had sufficient assets to pay her own fees. The District Court of Appeals reversed, holding that fact that HUSBAND had access to more funds to pay attorney’s fees. The fact that WIFE had substantial assets of her own was not a basis, in and of itself, to deny her request for fees. It also faulted the trial court for finding that WIFE’s fees were unreasonable. The Court held that, if HUSBAND had not commingled his assets during the marriage, there would not have been the need to incur more than $500,000 in fees that HUSBAND paid for the tracing of his assets.The Court emphasized the fact that Family Code §2030 mandates an attorney fee award if there is a “. . . disparity in access and ability to pay” fees and costs. Thus, once the trial court finds that a disparity exists, it is required to make an attorney fee order.
WIFE’S ATTORNEY ORDERED TO PAY $50,000 IN SANCTIONS FOR DISCLOSING THE CONTENTS OF A CONFIDENTIAL PSYCHOLOGICAL EVALUATION.
Marriage of Anka and Yeager
31 Cal. App. 5th 1115, 242 Cal. Rptr. 3d 884
February 4, 2019.
WIFE was previously married to HUSBAND#1, with whom she had a child. In her second marriage, WIFE was married to the singer/songwriter PAUL ANKA. The issue of child custody was litigated in the second divorce. In her deposition of WIFE’s first husband, WIFE’s attorney asked numerous questions about the confidential psychological evaluation that had been conducted in the first divorce case. The trial court imposed a $50,000 sanction against WIFE and her attorney.
The District Court of Appeals affirmed the sanction order against wife’s attorney because it found she intentionally disclosed the contents of the confidential evaluation report. However, the Court reversed the sanction order against WIFE, because there was no evidence that she ordered her attorney to make the disclosures.
DISTRICT COURT OF APPEALS HOLDS THAT PREMARITAL AGREEMENTS ARE SUBJECT TO THE UNIFORM FRAUDULENT TRANSFER ACT.
Sturm v. Moyer
32 Cal. App. 5th 299, 243 Cal. Rptr. 3d 556
February 15, 2019
In 2005, Sturm obtained a $600,000 judgment against Husband. Sturm was unable to collect on the judgment, so he scheduled a judgment debtor’s examination of Husband. In that examination, Sturm stated that he had married Wife and that they had a premarital agreement that provided that any income or assets acquired by either spouse were their respective separate property. However, the agreement also said that, once all prior judgments become unenforceable, all income earned and assets acquired thereafter would be community property.
Sturm filed a lawsuit against Husband and Wife under the Uniform Fraudulent Transfer Act (“UFTA”). The trial court sustained the spouses’ demur, holding that Husband and Wife were entitled to make their own agreements regarding what was and what was not to be considered community property of their marriage.
The District Court of Appeals reversed. It held that premarital agreements are “transfers between spouses” under the UFTA. The decision permits Husband to proceed with this lawsuit against Husband and Wife.
TRIAL COURT’S ORDER GRANTING INJUNCTION FREEZING $17.5 MILLION WAS APPEALABLE.
Marriage of Tim & Wong
Case No. G057202
March 7, 2019
Husband, who died in 2010, was previously divorce from Wife #2. Wife #1 claimed that the Judgment of Dissolution of Marriage required Husband to give Wife#1 a portion of the proceeds from the sale of trust assets that occurred after Husband’s death. Wife#1 filed a request for orders against Wife#2 to stop her from selling trust assets.
The decision recites that, “Due to various procedural quagmires, the court has not provided a final ruling on the question of whether the respondent is entitled to any of the proceeds.” This decision was limited to the question of whether Wife#2 could appeal the trial court’s interim orders. It did not address the merits of the case. For that reason, the decision did not discuss the exact facts of the case.
On December 10, 2018, the trial court issued various orders, including an injunction order that effectively froze $17.5 million. The trial court also issued discovery orders and orders for joinder. Wife#2 filed a series of appeals, challenging these orders.
The District Court of Appeals ruled that Wife#2’s appeal of the injunctive order could proceed. However, it dismissed Wife#2’s appeal from the other orders.
THE PARTIES FAILURE TO CHECK A BOX IN A COURT FORM, INDICATING THAT SPOUSAL SUPPORT WAS TO TERMINATE UPON WIFE’S REMARRIAGE, HELD TO BE A VALID WAIVER OF FAMILY CODE SECTION TERMINATING SPOUSAL SUPPORT UPON RECIPIENT’S REMARRIAGE.
In re Marriage of Martin
Case No. E069481
March 11, 2019
In October 2013, as part of their dissolution agreement, the parties agreed that Husband would pay spousal support of $1,000 a month, commencing on October 1, 2013, and continuing until August 1, 2017. To formalize their agreement, the parties used a Santa Barbara County Superior Court form which requires the parties to check a box to indicate that the spousal support is to terminate upon the remarriage of wife. However, that box was not checked. Wife remarried in November 2014. In March 2017, Husband filed a request to have Wife ordered to repay the sum of $27,000, which was the amount of spousal support he paid after she remarried.
Husband’s request was granted, but the District Court of Appeals reversed. The Court held that not checking the box in the local form was a sufficient indication that the parties did not intent Family Code §4337 to apply. That section provides that spousal support ends when the recipient remarries.
Even though the Court ruled in Husband’s favor, it encouraged the legislature and courts to modify their forms to provide that does apply, unless the parties check a box indicating they do not want that section to apply.
DISTRICT COURT OF APPEAL REVERSES TRIAL COURT’S ORDER GRANTING HUSBAND’S REQUEST TO MOVE THE CHILD FROM CALIFORNIA TO ARKANSAS. COURT FAULTS THE TRIAL COURT’S FAILURE TO CONSIDER LAMUSGA FACTORS AND FOR NOT ORDERING A FULL CHILD CUSTODY EVALUATION.
In re the Marriage of C.T. and R.B.
Case No. E070089
March 19, 2019
The parties’ child was born in 2006 and they separated in 2007. In 2008 Wife was awarded temporary physical custody of the child. In 2010 the trial court made interim orders awarding joint legal custody to the parties and physical custody to Wife. Husband moved to Arkansas in 2011. From 2013 through 2016, Husband saw the child only 35 days each year
In 2017, each parent asked the trial court to give them sole physical custody of the child. The decision recites that the child lived his entire life with Wife. Throughout the case, Wife wanted to limit Husband’s time with the child because he was unemployed and did not have a stable living situation.
The trial court awarded physical custody to Husband, based on its doubts that Wife would comply with the existing child custody orders. However, the District Court of Appeals reversed the trial court. It held that Husband had failed to show a change of circumstances since the 2010 order was made. He also failed to show that moving to Arkansas would not be detrimental to the child or that it would be in the child’s best interests. The Court faulted the trial court for not ordering a full child custody evaluation, which was recommended by a court mediator who had interviewed the parents.
Citing Marriage of LaMusga, the Court said that, in deciding a move-away case, the following factors must be considered.
- The child’s age and wishes
- The child’s community ties.
- The child’s health and educational needs.
- The child’s attachment and past, present and potential future relationship of the child with each parent.
- The anticipated impact of the move upon the child’s existing social, educational and familial relationships.
- Each parent’s willingness to facilitate frequent, meaningful and continuing contact with the other parent.
TRIAL COURT DID NOT ABUSE ITS DISCRETION VALUING REAL ESTATE AS OF THE DATE OF THE APPEAL AND ORDERING IT SOLD. CASE REMANDED BACK TO TRIAL COURT FOR DETERMINATION OF HUSBAND’S REIMBURSEMENT PURSUANT TO FAMILY CODE SECTION 2640.
In re the Marriage of Oliverez
Case No H044451
February 28, 2019
This was the second reported appellate decision in this case.
During the course of the dissolution, the parties entered into a formal Marital Settlement Agreement that certain real properties were community assets; that Husband was entitled to be reimbursed the value of his separate property that was used to acquire one of the real properties; and that the real properties should be appraised and listed for sale. They further agreed that that Husband was not entitled to credits for post-separation payments of community debts. They also agreed to equalize the division of their community property, Husband would pay $600,000 to Wife.
In the first trial, the judge made orders incorporating the parties’ agreement. On appeal, the District Court of Appeals reversed the trial court and remanded the case back to that court for further trial.
In the second trial, in 2016, the court:
- Denied Husband’s request to value the properties as of the original trial date.
- Denied Husband’s request that the real properties be assigned to him in the division of the community property.
- Ordered the properties to be appraised and sold after the entry of the judgment. With regard to one of the properties, the court ordered the property be appraised and sold, with the proceeds distributed between Husband and the community in proportion to Husband’s separate property ownership, which the court did not define.
- Found that one of the properties was partially Husband’s separate property, even though the Marital Settlement Agreement provided that it was community property, subject to Husband’s right to be reimbursed for the use of his separate property monies to acquire that property.
- Ordered Wife to reimburse Husband $300,000, based on its finding that Husband used $600,000 of community property funds to comply with the Marital Settlement Agreement, which the court held invalid.
- Denied Husband’s claims for reimbursement for his post-separation payments of community expenses.
The District Court of Appeals affirmed orders 1, 2, 3, 5 and 6. However, it reversed with regard to order 4.
District Court of Appeals’ Holding Regarding Order Numbers 1, 2 and 3
The Court held that the trial court had the discretion to order that the properties be appraised and sold. Under Family Code §2552 and cases interpreting it, the Court can value an asset as near as practicable to the court proceeding in which a proper division takes place, including on remand after appeal. Moreover, Husband failed to provide the District Court of Appeals with a sufficient record of the trial court’s proceedings to enable it to determine what factors the trial court considered in making its decision. The Court further held that the trial court considered matters at that hearing relevant to its decision that the properties be valued at the date of remand because it denied Wife’s request to reopen discovery on that issue.
Wife objected to the trial court’s order for the sale of the properties. The Court held that the trial court had broad discretion to decide how to divide the community property. Thus, its review was limited to whether the trial court abused its discretion, which it did not.
District Court of Appeals’ Holding Regarding Order Number 4
The Court held that the trial court committed prejudicial error when it held that the disputed property was part of community property and party Husbands separate property. The matter was remanded back to the trial court, with instructions to characterize the subject real property as community property and determine HUSBAND’s claim for reimbursement pursuant to Family Code Section 2640.
District Court of Appeals’ Holding Regarding Order Number 5
Husband argued that the trial court erred when it found that the $600,000 equalization payment he made to Wife, pursuant to their Marital Settlement Agreement, was presumptively community property, and ordering Wife to pay $300,000 back to Husband. Instead, Husband asserted that the entire $600,000 was his separate property. However, the Court held that Husband had failed to properly object to the trial court’s ruling and had forfeited his argument at the appellate level.
District Court of Appeals’ Holding Regarding Order Number 6
The trial judge did not specifically rule regarding Husband’s reimbursement and credit claims. Instead, it generally referenced Husband’s lack of credibility.
“This court finds that [Husband’s] testimony and his documentation are not worthy of belief. He bears the burden to establish his right to Fam. Code section 2640(b) reimbursement. He has failed to present credible evidence in support of his claim.”
The District Court of Appeals held that the trial court was in the best position to weigh all of the evidence, as well as Husband’s overall credibility.
CORPORATE SHARES, ACQUIRED BY HUSBAND BEFORE MARRIAGE, AND WHICH INCREASED SUBSTANTIALLY IN VALUE DURING THE MARRIAGE, HELD TO BE HUSBAND’S SEPARATE PROPERTY.
In re the Marriage of Brooks
Case No. H043467
March 27, 2019
Six years before the marriage, Husband started a business with a partner. The business produced replacement sounds on digital chips for digital drum machines. One year before the marriage, the company was acquired by another company. Husband received $38 million in shares of the acquiring company. Husband and his partner continued working for the company. Husband was the inventor and key software developer of Sound Designer, which went to market in 1984 or 1985, and which was updated approximately 10 times between 1984 and 1989, the year the parties married. During the marriage, Husband was the key software engineer for the product.
Husband worked long hours for DigiDesign. Wife testified that he was “always working.” Experts who testified at the trial opined that Husband was adequately compensated the community for his efforts. The trial judge concluded that the main product of the company was a successful and mature product before the marriage and that the company’s growth after the marriage did not stem from extraordinary contributions by Husband.
By the time the parties separated, the value of the company’s stock had increased dramatically. The issue before the trial court was the characterization of that increase. Husband asserted that the increase was his separate property because it was not primarily the result of Husband’s efforts during the marriage. Wife, on the other hand, claimed the increase was community property because of Husband’s work during the marriage. The trial court agreed with Husband.
The District Court of Appeals affirmed the trial judge’s decision.
Applying the rule in Marriage of Van Camp, the Court stated that, even though evidence showed that Husband was important to the company and held an officer’s position, he did not play a leadership role in the company, nor did he contribute to the company’s growth after the date of marriage. The Court further held that there was substantial evidence supporting the trial judge’s decision.
ORDER RESTRAINING HUSBAND FROM DISCUSSING THE CHILD CUSTODY LITIGATION ON HIS FACEBOOK PAGE HELD TO HAVE VIOLATED FIRST AMENDMENT RIGHT OF FREE SPEECH.
In Re Marriage of Molinaro
Case Number B282014
February 26, 2019
The trial court made an order restraining Husband from discussing the child custody case with the minor children. As part of that order, the judge restrained Husband from discussing the case on his Facebook page, apparently because the Court saw this as another way of involving the children in the case.
The District Court of Appeals reversed, holding that the order was an unconstitutional infringement on Husband’s right of free speech. The Court observed that Husband’s Facebook posts were not specifically directed to the children. Instead, they invited comments from Michael’s adult friends and extended family.
FATHER WHO WAS INCARCERATED, WHILE HE WAS ORDERED TO PAY CHILD SUPPORT, MIGHT BE ENTITLED TO RELIEF UNDER FAMILY CODE SECTION 4007.5.
San Diego Dept. of Child’s Services v. C.P
April 8, 2019
In January 2013, the family court ordered respondent C.P. to pay monthly child support. From September 12, 2013, through August 22, 2017, C.P. was incarcerated in federal prison. Less than a month after his release, C.P. promptly filed a request for the court to adjust the child support arrears that accrued during his incarceration-which the parties and the family court handled under current Family Code section 4007.5.
Initially, the Court held that Family Code §4007.5 (f) expressly provides that the statute applies only to child support orders issued on or after October 8, 2015, and C.P.’s child support order under consideration was issued in January 2013.
However, the Court further held that C.P.’s request could be read as a request for adjustment in child support arrears under former section 4007.5, which was repealed as of July 1, 2015 (id., subd. (I); but the parties did not brief and the trial court did not consider whether former section 4007.5 contains a saving clause that provides C.P. with a statutory basis on which to have obtained the requested relief.
The Court reversed the order granting C.P.’s request and remanded the case back to the trial court, with directions to consider, as appropriate based on briefing to be requested, whether former section 4007.5 includes a saving clause that allows its application to C.P.’s request and, if so, whether C.P. has made a sufficient showing for the relief he seeks.
FATHER WHO HAS PAID CHILD SUPPORT IS NOT LIABLE TO THE MOTHER’S HUSBAND FOR REIMBURSEMENT FOR EXPENSES CONCERNING THE CHILD. THE FATHER WAS NOT REQUIRED TO PRODUCE HIS INCOME INFORMATION IN LAWSUIT BY MOTHER’S HUSBAND FOR REIMBURSEMENT.
Look v. Penovatz
In 2006, the marriage of Penovatz and his wife, Rothert, was terminated. Penovatz was awarded primary physical custody of their son, Christopher. However, Penovatz was ordered to pay Rothert child support of $400 per year. Four years later Rothert assumed residence with Look, in what was described as a husband and wife relationship. Within that same year, Penovatz and Rothert agreed that Christopher would live with Rothert and Look.
Penovatz continued to pay $400 per month to Rothert. A dispute arose as to whether the $400 child support order was ever modified. However, the decision recites that there was never a formal stipulation that modified that order.
After Christopher graduated from high school, Look sued Penovatz pursuant to Family Code §3059, which provides as follows:
“If a parent neglects to provide articles necessary for the parent’s child who is under the charge of the parent, according to the circumstances of the parent, a third person may in good faith supply the necessaries and recover their reasonable value from the parent.”
The trial court’s ruling in favor of Penovatz was affirmed by the District Court of Appeals. The court referenced cases interpreting the predecessor to Family Code §3059, which concluded that a third party does not have a right to reimbursement where the parent from whom he or she is seeking reimbursement is paying child support pursuant to a court order. The Court further held that Rothert could have, and should have, sought modification of the child support order in the dissolution action, upon a showing of a material change of circumstances.
During the discovery phase of the case, Look demanded financial documents from Penovatz. The trial court denied that request, citing Penovatz’ right of privacy. Based on its conclusion that Look was not entitled to seek reimbursement based on Penovatz’s payment of child support pursuant to the order in the dissolution action, it held that the request for financial information from Look was not relevant to the claim or essential to the fair resolution of the lawsuit.
MOTHER HELD NOT REQUIRED TO COMPENSATE HER CHILDREN’S GRANDMOTHER FOR SUPPORT THE GRANDMOTHER PROVIDED WHILE THEY WERE LIVING WITH HER.
County of San Diego v. C.A
Case Number DF274505
April 22, 2019
The father, who had been awarded physical custody of the child, moved in with his mother – the child’s paternal grandmother, in Maryland. Within the next year, the grandmother petitioned the Maryland court for an order awarding her sole legal and physical custody of the child. That request was granted. The court ordered the father to pay child support of $310 per month to the grandmother. Subsequently, San Diego County sought a child support order, on behalf of grandmother, against the child’s mother.
Family Code §3951 provides that a parent is not required to compensate a relative for “the voluntary support of the parent’s child” unless there is an agreement for compensation. The trial court held that because grandmother’s custody was not “voluntary” because it was ordered by a court.
The District Court of Appeals observed that concluded that Family Code §3951 has long been interpreted to deny compensation in intra-family support arrangements of the type at issue here, unless the parties have an express agreement for support. Grandmother assumed the care of the child of her own accord. Moreover, there was no agreement for the payment of child support between grandmother and the children’s mother. For those reasons, the Court held that mother had no obligation to compensate grandmother for the child-related expenses.
THE VIOLATION OF A DOMESTIC VIOLENCE ORDER IS, ITSELF, AN ACT OF DOMESTIC VIOLENCE.
N.T. v. H.T.
March 26, 2019
The court issued domestic violence restraining orders against the husband. Eight months later the wife sought a Domestic Violence Restraining Order (DVRO) against HUSBAND for multiple violations of the prior order. Husband did not deny many of wife’s allegations.
The issue presented was whether a violation of a domestic violence order is, in itself, domestic violence. The trial court denied wife’s requested orders.
The District Court of Appeals reversed the trial court. It held that the alleged conduct, in the absence of a prior domestic violence order, would constitute acts of domestic violence. It further held that the trial court failed to make the necessary factual findings regarding the issuance of the DVRO. The case was remanded back to the trial court to determine if it should issue the requested DVRO, in light of the Court’s holding.
CALIFORNIA COURT DID NOT HAVE JURISDICTION TO MODIFY NORTH CAROLINA CHILD CUSTODY ORDER.
Marriage of Kent
Case Number D074529
May 17, 2019
A North Carolina court issued an extremely detailed child custody order concerning the parties children, who were 13 and 11 years old at the time. Six months later the mother registered the North Carolina child custody order with the San Diego County Superior Court and filed a request to modify it. The mother’s only request was that a provision that limited each parent’s contact with certain adults when the children were visiting that parent be deleted.
The portion of the North Carolina order that mother wanted deleted provided as follows:
“Neither Father nor Mother shall have any adult unmarried person of the opposite sex unrelated by blood or marriage stay overnight at their place of residence when the minor children are in their physical custody. Should either party engage in an adult romantic relationship with any other individual, said party shall not intentionally allow said individual to be in the presence of the minor children until such time that the parties have obtained a divorce judgment. The minor children shall at no time intentionally be in the presence of Mr.[A.R.]. That should the minor children be unintentionally in the presence of Mr.[A.R.], Mother has the affirmative obligations to remove the minor children from Mr.[A.R.]’s presence.”
The trial court granted a portion of the mother’s requested orders. However, it failed to first address the question of whether it had jurisdiction to modify the North Carolina order.
The District Court of Appeals reversed the trial court, but not on the merits of mother’s request. Its reversal was directed to the failure of the trial court determined if it had jurisdiction to modify the prior order, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA; Fam. Code, §3400 et. seq.)
The court held that even though the North Carolina order could be registered and enforced in California, that did not confer on the state the power to modify such an order. In held that pursuant to Family Code §3423, another state’s child custody order can be modified in California, only if:
● California has jurisdiction to make an initial determination; and
● Either. . .
a. The out-of-state court has determined either that it no longer has exclusive continuing jurisdiction under section 3422 or that California would be a more convenient forum under section 3427, or
b. The out-of-state court or a California court determines that the child and the child’s parents do not presently reside in the out-of-state forum.
The court’s minutes reflected that the parties agreed that California “. . . has UCCJEA jurisdiction.” However, there is no law that enables the parties to agree that California has modification jurisdiction. In any event, the fact that the father continues to live in North Carolina precluded the Court from modifying the custody order.
Husband’s attorney argued that the trial court committed a “harmless error,” that should not preclude it from ruling on the mother’s Request for Orders. However, the Court held that the trial court acted in excess of its jurisdiction, so mother did not have to show that she was prejudiced by the order made by the trial court.
Finally, the Court held that the family court’s failure to have contacted the North Carolina Court before considering a modification to the North Carolina Order is reversible error. Having been supplied section 3429 documents disclosing that a child custody proceeding had been commenced in the North Carolina Court, the California family court was required to “stay its [modification] proceeding and communicate with the court of the other state.”
WIFE WHO REFUSED TO SIGN A JUDGMENT THAT REFLECTED A SETTLEMENT THAT WAS RECITED TO THE COURT, ORDERED TO PAY HUSBAND SANCTIONS OF $10,000.
Marriage of George and Deamon
Case Number D073667
May 17, 2019
At a Mandatory Settlement Conference, the parties agreed to the terms of the full settlement of their dissolution case. The terms of the settlement were recited, on the record, before the judge and Husband’s attorney was ordered to prepare the Judgment of Dissolution of Marriage. The court ordered that the agreement was enforceable under Code of Civil Procedure §664.6. (Court has the power to enter an order that is consistent with a recited order, in the absence of one of the party’s signatures.)
Husband’s attorney prepared the Judgment of Dissolution of Marriage and sent it to Wife for her approval. However, Wife refused to sign the judgment, unless certain provisions, that were not part of the agreement, were added. Husband’s attorney then filed a motion, pursuant to Code of Civil Procedure §664.6, as well as a request for sanctions, pursuant to Family Code §271. (Court can impose monetary sanctions against a party who acts inconsistent with court policy to encourage settlement.)
At the hearing of Husband’s motion, Wife stated that she approved the judgment. The issue of sanctions was heard on a subsequent date. Husband, who lives in Japan, was represented by his attorney at that hearing. Wife objected to Husband’s declaration on the ground of hearsay. She contended that she had the right to cross-examine Husband regarding his declaration.
Wife was ordered to pay sanctions of $10,000, pursuant to Family Code §271. That decision was affirmed by the District Court of Appeals.
While it agreed that Wife had the right to insist on a full evidentiary hearing, it also held that she had failed to follow the procedure set forth in Code of Civil Procedure §1987(b) that are required in order for such a hearing to take place. That section provides as follows:
“In the case of the production of a party to the record of any civil action or proceeding . . . , the service of a subpoena upon any such witness is not required if written notice requesting the witness to attend before a court, or at a trial of an issue therein, with the time and place thereof, is served upon the attorney of that party or person.”
Wife further contended that Husband’s declaration was not admissible because she did not agree that the motion could be decided based on written declarations. The Court held that Family Code §271 does not foreclose the submission of declarations in a sanction motion. Moreover, it observed that the Code of Civil Procedure allows motions to be decided on declarations, instead of oral testimony.
Another of Wife’s contentions was that she had the right to call Husband as a witness, unless the trial court made a specific finding that there was no good cause for live testimony. The Court, however, held that there was no record that Wife had made a formal request for live testimony before the trial court.
In any event, the Court held that Wife had not specifically stated how her cross-examination of Husband would have had any bearing on the issue of sanctions. I said that all the trial court needed to make its sanctions order was the contents of the draft Judgments of Dissolution of Marriage that had been prepared by Husband’s attorney. In summary, the Court concluded that:
“. . . although in certain circumstances the family court is required by section 217 to receive live testimony when deciding a motion, the family court, in this case, did not prejudicially err by deciding the sanctions motion based on the declarations and documentary evidence alone.”
TRIAL COURT’S DECISION TO UPHOLD THE PARTIES’ PREMARITAL AGREEMENT AFFIRMED BY THE DISTRICT COURT OF APPEALS.
Marriage of Miotke
Case Numbers H040611 and H040972
May 28, 2019
(Note: This is an extremely long decision, with many sub-parts. It was not possible to provide a complete summary within the format of this article.)
Wife, a Russian architect and a proficient English speaker, came to the United States after meeting Husband online in 1995. That same year, Wife moved to California, where she and Husband had a child in 1996. They agreed to marry, but Husband wanted a prenuptial agreement to protect his property rights and avoid having to pay spousal support if Wife returned to Russia.
In October 1996, the parties retained the services of a paralegal who prepared a “boilerplate agreement,” which he gave to Husband. Wife said she did not see the agreement before she and Husband went to the paralegal’s office to sign it. Husband testified that he and Wife had previously discussed a waiver of spousal support and that Wife would get custody of their children, in the event of a dissolution. The decision recites that, “[a]t the time the parties executed the agreement, the ‘paralegal said that the agreement could be drafted by an attorney and had the parties sign an acknowledgment that the parties knew she was not giving legal advice.’ The parties agreed ‘that they went to the paralegal’s office to sign the agreement in anticipation of their marriage and that financial disclosures were completed at the paralegal’s office.'”
The relevant portion of the agreement provided as follows:
“Both parties agree that in the case of separation or divorce there will be no spousal support owed by either of the parties to the other. Both parties are also in agreement that all children will remain in the custody of Natalia Zarubin upon separation or dissolution unless otherwise stipulated and agreed on by legal separation and/or dissolution of marriage.”
The parties got married 19 days after they signed the agreement. They separated after 14 years of marriage. In the dissolution proceeding, the parties litigated the validity of the agreement. In her challenge to the agreement, Wife claimed:
- Her signing of the agreement was not voluntary. Instead, it was the product of duress, menace, fraud and/or undue influence.
- The agreement was unconscionable, in light of her inferior financial circumstances and her depression.
- The disclosures between the parties were inaccurate, unfair and unreasonable.
- She was not represented by counsel, as required by Family Code §1615(c).
The parties retained the services of a retired judge to try the issues of the validity of the agreement. After a lengthy trial, the trial judge held that the agreement was valid. The trial judge found Wife was not credible with respect to the circumstances surrounding the signing of the agreement and that she voluntarily signed the agreement. The judge further found that Wife was capable of understanding the agreement and that the parties had essential equal bargaining positions. The judge also held that the provisions of Family Code §1615(c) were not applicable to the case because that statute had been enacted after the agreement had been signed.
Wife’s motion to set aside the trial judge’s decision was denied. Wife then appealed that denial.
In the meantime, trial was held, before another judge, on the remaining issues. Because of the first judge’s ruling that the agreement was valid, the judge found that the issue of spousal support had been resolved. At the end of the trial, the judge reaffirmed the decision of the retired judge, holding that both parties had waived spousal support in the agreement. Wife filed an appeal from that decision.
The decision of the trial court was affirmed by the District Court of Appeals on the following grounds. Initially, the Court held that the record on appeal was deficient, including the fact that Wife failed to provide a transcript of the proceedings before the retired judge. It further held that failure to raise certain issues before the trial court.
Having disposed of those preliminary matters, the Court then turned its attention to the question of whether the Wife’s lack of legal representation when the agreement was signed rendered it unenforceable. The Court did not see anything wrong with how the retired judge arrived upon her decision to uphold the agreement. The Court summarized its decision regarding that issue as follows:
“. . . the paralegal who prepared the PMA notified the parties it could be prepared by an attorney, and had them acknowledge she was not giving them legal advice. Judge Gallagher found Natalia to be an “intelligent woman”; the record reflects her work experience, including her work as a bookkeeper early in her pregnancy. There is substantial evidence Natalia could understand and communicate in English with ease. Judge Gallagher determined Natalia “was capable of understanding the terms of [the PMA] and the effect of [the PMA] on each party.” The PMA is four pages long, with four pages of attached disclosures, described by Judge Gallagher as “not particularly complex.” She found no evidence Natalia lacked mental capacity, or that she signed the agreement as a result of trick or deception. Judge Gallagher found the parties’ disclosures to be “fair, reasonable, and full,” and found Natalia to be capable of understanding Peter’s disclosures. She also noted the evidence did not reveal a significant disparity in the parties’ incomes and assets at the time they signed the PMA, given Natalia’s earning history, such that there was no “significant inequality of bargaining power.”
The Court further affirmed the trial court’s denial of Wife’s motion to set aside the trial decision of the retired judge regarding the validity of the agreement.