Family Law Case Studies

Family Law Case Studies - Volume 10, Number 2

Published and Unpublished Appellate Court Opinions for February 2012

Published as a service to the Family Law Bar Association.

Compiled by the Hon. E. J. Burke, 1035 Palm Street, Room 355, San Luis Obispo, CA 93408, jeffrey.burke@slo.courts.ca.gov.

Published and unpublished slip opinions can be secured from www.courts.ca.gov/opinions.htm.

 

Published Opinions

Irmo Wahl & Perkins (2012) ___ Cal.App.4 th ___ (CA 6 – Opinion filed February 2, 2012)

A $552,000 sanction in the form of an award of attorney's fees may be imposed for a party's frustration of settlement and for employing tactics that increase the cost of litigation. Her attorneys were sanctioned for a frivolous appeal.

Husband and Wife divorced in 1999. In 2006, Wife filed a motion to modify the custodial orders in the judgment of dissolution. A child custody evaluator recommended that Husband be given custody of the children for at least a year.

In 2009, the parties and their attorneys stipulated to orders that Husband and Wife would have joint legal custody of the two children and Wife would have sole physical custody. A general visitation schedule was specified for Husband and provisions were made for him to have parenting time on specified holidays, school breaks, and summer vacation.

Wife's home was in Pennsylvania and the orders had provisions for transportation, telephone access between the children and each parent. The court also put an ADR process in place to resolve disagreements. A Co-Parenting Coordinator was authorized to make binding decisions on certain minor issues.

Only one day after the entry of the court's orders, Wife claimed they were “coerced and invalid.” She refused to comply with the ADR process “retroactively terminated” her agreement with the parenting coordinator and “reserved all rights pursuant to UCC 1207(a) to seek all remedies, including criminal." Wife created various other confrontations and made a variety of demands, all to limit Husband's access to the children. She refused to take Husband's calls or respond to his messages. Wife thwarted Husband's effort to contact the children on their cell phones. She repeatedly announced her “rescission of the coerced, rushed, involuntary signature under severe duress" and said, "I fully reinstate all my rights . . . and revoke all agreements other than that which is in the final order of 12.05."

Wife insisted Pennsylvania was the children's home state and that only Pennsylvania courts had jurisdiction over custody and visitation litigation issues. Husband was required to employ counsel in Pennsylvania to defend the proceedings initiated there by Wife.

In 2009, the Santa Clara County Superior Court ordered Wife to comply with the terms of the stipulated orders and made other orders designed to implement the parenting plan adopted by the court. Wife's response was to send another letter to the court-appointed co-parenting coordinator “retroactively terminating” any obligation on her part. She asked the Pennsylvania court to enforce the orders the 2009 stipulated orders specifically replaced.

Wife's many requests for relief in state and federal courts in Pennsylvania required Husband to employ counsel to resist the onslaught. After Wife was sanctioned in Pennsylvania for asking for the same relief three times, she filed a federal lawsuit against the judge and sought ADA protection. In February 2010, while Husband was in flight from California for a visit with the children, Wife demanded $250,000 plus a $250,000 retainer. She also informed Husband, "No further weeklong visits will be permitted until this rescission is addressed, and prompt payment as outlined with repayment of any [and] all losses/costs and retainers is received; while the coerced 3.13.09 document is being addressed."

Husband said that he had incurred a total of $582,493.02 in attorney's fees and costs from March 17, 2009 through February 24, 2010. Husband argued that sanction would not unreasonably burden Wife because she "received approximately $30 million in cash and stock in their divorce settlement in 2001."

Wife's 2009 I&E showed $7 million in assets $5 million of which could be easily accessed. It also appeared that she had placed a significant amount of her assets in trust vehicles. A financial analyst estimated the stock received by Wife in the marital dissolution had grown to at least $18 million by February 1, 2010.

The trial court found Husband met his burden of showing that Wife had “frustrated the policy of the law to promote settlement of litigation.” It found that $552,153 was a reasonable fee under the circumstances and that awarding a sanction in that amount was not unreasonable. "Husband cannot be faulted for aggressively litigating the enforcement of a custody order that Wife seems determined to ignore.”

Wife appealed. AFFIRMED

FC § 271

FC § 271 (a) provides that a sanction in the form of an award of attorney's fees and costs can be based upon the extent to which each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and reduce the cost of litigation. The court must consider the parties' incomes, assets, and liabilities and find the sanction imposed is not an unreasonable financial burden.

Wife argued that the magnitude of the trial court's award was unprecedented and that it was simply the stuff of “hyperbole and daydreams." She also asserted that the impact of the custody litigation on their children is not a "proper factor" to be considered by the court in making an award under section 271. The CA disagreed.

The CA said the superior court based its award on the totality of Wife's conduct that frustrated the parties' 2009 settlement agreements. Her denial of any intention to disobey the court's orders was hopelessly inconsistent with her statements and conduct. As to the effect of her antics on the children, the CA observed, “The fact that the court was mindful of the adverse effect of acrimonious litigation on the children does not establish that the court acted unreasonably.”

Wife emphasized that she was never held in contempt but the CA said nothing requires a trial court to issue a contempt order before imposing an award under section 271. “The court was entitled to consider the filing of Wife's purported rescission as part of her overall conduct aimed at repudiating the court's March 16, 2009 orders and thwarting the underlying settlement agreements to which she was a party. ( Irmo Feldman, supra, 153 Cal.App.4 th at pp.1479-1480; Irmo Corona (2009) 172 Cal.App.4th 1205, 1226.)”

The CA also rejected Wife's contention that the trial court had no jurisdiction to sanction her based on the litigation she initiated in Pennsylvania. “In appropriate circumstances, a court has authority to impose sanctions under section 271 for attorneys' fees incurred in a different case. (See Burkle v. Burkle (2006) 144 Cal.App.4th 387, 400, 403, fn. 7.) Wife's Pennsylvania proceedings were closely connected to her efforts to unilaterally repudiate the California Court's orders and to reject its authority and jurisdiction. Once a California court has made a child custody determination under specified provisions of California's Uniform Child Custody Jurisdiction and Enforcement Act, the court generally retains exclusive, continuing jurisdiction over the determination while a parent remains a resident of California. (See FC § 3422; Grahm v. Superior Court (2005) 132 Cal.App.4th 1193, 1200.)

Wife failed to show the trial court's award included fees for services unrelated to her defiant attempts to thwart the court's 2009 orders. Moreover, “a sanctions award under section 271 need not 'be limited to the cost to the other side resulting from the bad conduct.' (In re Marriage of Quay (1993) 18 Cal.App.4th 961, 970.)”

Sanctions on Appeal

"When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just." (Code Civ. Proc., § 907.) On its own motion, a Court of Appeal may impose sanctions on a party or an attorney for "[t]aking a frivolous appeal or appealing solely to cause delay." (CRC, rule 8.276(a)(1).)

Here, the CA concluded Wife pursued an appeal that raised completely and undeniably meritless arguments and said her appeal was frivolous. The CA ordered Wife to pay Husband's costs on appeal and to pay the clerk of the court $15,000. Her two attorneys were each ordered pay $5,000.

Irmo Falcone & Fyke (2012) ___ Cal.App.4 th ___ (CA 6 – Opinion filed January 23, 2012)

Vexatious litigants.

Following a lengthy, 51-page review of the latest of sixteen propria persona appeals by Kathey Fyke, the CA found no merit in her challenges to (1) a judgment distributing marital property; (2) a post-judgment order awarding Richard attorney fees, costs, and sanctions; (3) a post-judgment order confirming an accounting and distributing funds; (4) a post-judgment order awarding sanctions to Richard for her appeal of the order awarding sanctions against her; and (5) a pre-judgment order awarding sanctions against her for misconduct in her efforts to obtain a trial continuance.

The CA then issued an OSC ordering Kathey to show cause why it should not declare her a vexatious litigant pursuant to section 391 (b)(1). After considering Kathey's response, the CA concluded she is a vexatious litigant and ordered her to be subject to a pre-filing order pursuant to CCP § 391.7.

The CA said, “A ‘vexatious litigant' includes a person who ‘[i]n the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in small claims court that have been . . . finally determined adversely to the person . . . .' (§ 391 (b)(1).) The vexatious litigant statute is designed not only to protect opposing parties harassed by meritless lawsuits, but also to conserve court time and resources and protect the interests of other litigants who are waiting for their legal cases to be processed through the courts. ( In re R.H. (2009) 170 Cal.App.4th 678, 696.)

The CA determined that Kathey met the definition of a vexatious litigant because “in this court alone, in the immediately preceding seven-year period she commenced, prosecuted, or maintained in propria persona eleven litigations – not including the five appeals addressed by this opinion - that were finally determined adversely to her. This, the CA said was a misuse of the courts of this state. “Her misuse has impacted other litigants and this court. ‘ “Other appellate parties, many of whom wait years for a resolution of bona fide disputes, are prejudiced by the useless diversion of this court's attention. In the same vein, the appellate system and the taxpayers of this state are damaged by what amounts to a waste of this court's time and resources.” ' ( In re Whitaker (1992) 6 Cal.App.4th 54, 57.)

Kathey was ordered by the CA not to file any new litigation in the courts of the state of California in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed. She was reminded that, “Disobedience of this order may be punished as a contempt of court.”

Irmo Walker (2012) ___ Cal.App.4th ___ (CA 6 - Opinion filed January 10, 2012, ordered published February 2, 2012)

Post separation disability allowance payments are not community property.

Husband and Wife married in 1993 and separated in 2008. Husband had worked as a public school teacher since 1988 and continued in that employment until January 2008 when he left due to a disability. Husband has been a member of CalSTRS since 1986.

Husband applied for a CalSTRS disability allowance after the couple separated, and CalSTRS granted his application retroactive to December 2008. In June 2009, CalSTRS notified Wife that she would be entitled to 36.2% of Husband's disability allowance based on the application of “the time rule” and said her “community interest” could be segregated. Based upon these representations, Husband agreed to the preparation of a DRO that diverts 36.2% of his disability benefits to Wife.

In August 2010, Husband moved to set aside the DRO, claiming he mistakenly relied upon representations by CalSTRS, by Wife's attorney and by Wife's DRO attorney that she had a community property interest in his CalSTRS disability allowance . Husband claimed that he did not learn the truth until his new attorney told him so in July 2010.

Wife resisted the relief sought, saying CalSTRS had informed them that Husband's disability benefits were not “separate” from his other CalSTRS benefits, depended upon his contributions to his defined benefit account, and were being paid out of his defined benefit account, in which Wife had a community property interest.

The trial court denied Husband's motion to set aside the 2009 orders, finding his CalSTRS disability benefits were not his separate property. The court also found that Husband did not make a mistake because, in fact, Wife did have a community property interest in Husband's disability allowance. In the court's view, Husband's disability allowance was “a service-connected disability pension which is meant to replace his retirement pension.” “[T]he disability benefits are being paid in lieu of a longevity pension . . . .” REVERSED

CalSTRS Provisions

A disability allowance and disability retirement are “ ‘ [d]isability benefit[s] ' ” provided by CalSTRS to its members. (Ed. Code, § 22127.2.) But the two benefits are not the same.

The amount of the disability allowance is not necessarily dependent on the member's years of service because the amount of the disability allowance is the lesser of the amounts produced by two different calculation methods. One method takes into account the member's years of service while the other does not. (Ed. Code, §§ 24006, 24007.) The result is that a member with 20 years of service, such as Husband, will receive 70% of his final compensation until he reaches normal retirement age. The disability allowance then terminates and he becomes eligible for a service retirement . (Ed. Code, § 24213 (a).)

A disability retirement allowance is never based on years of service. It is instead an allowance equal to 50% of final compensation payable in monthly installments plus 10% for each dependent child. Thus a member with fewer years of service than Husband or with more dependent children could receive a larger amount as a disability retirement allowance than the member would be eligible to receive as a disability allowance .

Both disability benefits are distinguishable from a CalSTRS “service retirement.” A CalSTRS service retirement is not available until the member is 55 years of age or older. If a member retires at age 60, the normal retirement age, the member receives an allowance equal to 2% per year of service multiplied by final compensation.

The CalSTRS statutes explicitly provide for the division of a community property interest in a CalSTRS member's “ retirement allowance or retirement benefit.” (Ed. Code, § 22655.) There are no parallel provisions providing for division of a member's “disability allowance.” Instead, the only role that a disability allowance plays with respect to a nonmember spouse's community property interest in a member's CalSTRS benefits is where the disability allowance commenced prior to the couple's separation. (Ed. Code, § 22664, subd. (e).].) Here, Husband's disability allowance commenced after the couple's separation, so it has no impact on Wife's community property interest in Husband's CalSTRS retirement benefits.

Case Authority

The CA digested and discussed three appellate court opinions treating this issue; viz., Irmo Jones (1975) 13 Cal.3d 457; Irmo Mueller (1977) 70 Cal.App.3d 66; Irmo Stenquist (1978) 21 Cal.3d 779.

Jones establishes that while vested retirement benefits attributable to employment during marriage are a community asset, “disability pay” must be be treated differently. The distinction is based upon the fact “disability pay does not serve primarily as a form of deferred compensation for past services.” ( Jones at pp. 461-462.)

Mueller establishes that a spouse eligible for a service retirement who elects to accept a disability retirement because of the tax advantages must share the portion of the benefit that would have been received as a retirement benefit. ( Mueller at p. 71.)

Stenquist establishes that a disabled spouse who is eligible for a military service retirement but who elects to take a more remunerative disability retirement cannot escape his or her obligation to divide the portion of the benefit earned during the marriage. There, the amount of the disability retirement was computed based in part on the disabled spouse's years of service, and thus “the [disability] pension's function of compensating the [disabled spouse] for loss of earning capacity or providing recompense for personal suffering is secondary to the primary objective of providing retirement support.” ( Stenquist at p. 787.) Other cases were also discussed. ( Irmo Briltz (1983) 141 Cal.App.3d 17; Irmo Justice (1984) 157 Cal.App.3d 82; Irmo Saslow (1985) 40 Cal.3d 848; and Irmo Elfmont (1995) 9 Cal.4th 1026.)

Characterization of Husband's Disability Allowance

Here, Wife was not deprived of her community property share of Husband's service retirement by Husband's receipt of a CalSTRS disability allowance. She received her entire community property share of Husband's service retirement when the DRO ordered CalSTRS to place her community property share of Husband's service retirement (service credits, contributions, and interest) into a separate nonmember CalSTRS account, over which she has independent control.

Husband did not elect to receive a disability allowance in lieu of a service retirement. He was not eligible for a service retirement at the time when he became disabled, and his disability allowance will terminate when he becomes eligible for a service retirement, if not sooner if he ceases to remain disabled. Under these undisputed facts, Husband's disability allowance cannot be deemed to provide retirement income but can only be properly seen as replacing his lost earnings during the period of his preretirement disability.

Unpublished Opinions

Please note: The following digests of unpublished opinions of the California Courts of Appeal are presented as case studies to illustrate how commonly recurring family law disputes were resolved in trial and appellate courts.

Caution: Rule 8.1115 (a), California Rules of Court, prohibits courts and parties from citing or relying on any unpublished opinion in any action or proceeding, except in the limited circumstances specified by rule 8.1115 (b).

Irmo Sayre – Unpublished opinion of District 4, Division 1 (Filed February 14, 2012)

A SSDI benefit paid to a child based upon his or her parent's disability can be credited against that parent's child support obligation on a dollar for dollar basis. But it may also be treated as income to the custodial parent.

A 2009 order requires Husband to pay Wife child support of $1,164 per month. When the SSA approved Husband's application for SSDI benefits of $2,290 per month, Husband petitioned for an order to terminate his child support obligation because the children also received monthly SSDI child benefits based upon his disability. Wife received a lump sum check for the amount of accrued but unpaid disability benefits due to the children. Husband asked for a dollar-for-dollar credit against the amount of child support he paid to Wife during the retroactivity period.

Following a hearing in June 2010, the trial court chose to treat the SSDI benefit paid to the children as taxable income to Wife instead of reducing his child support obligation on a dollar-for-dollar basis. The trial court's approach resulted in a reduction in Husband's child support from $1,164 to $424 a month. The trial court managed the children's retroactive benefits in the same manner by requiring Wife to repay Husband for the difference between the amount of child support Husband paid during the retroactivity period and the amount he would have had to pay under the guidelines had the children's SSDI benefit payments been included in Wife's income during that period.

Husband appealed. AFFIRMED

The CA rejected Husband's argument it was error to treat the children's SSDI benefit payments as income to Wife instead of giving him dollar-for-dollar credit for the payments against his child support obligation.

FC §4504 (b) provides that payments for the support of a child of a disabled person “shall be credited toward the amount ordered by the court to be paid by the noncustodial parent for support of the child unless the payments made by the federal government were taken into consideration by the court in determining the amount of support to be paid." Thus, the court can either consider the payments in fixing child support or to allow direct credit against the guideline formula support amount. ( Irmo Drake (1997) 53 Cal.App.4th 1139, 1162-1163; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2011) ¶ 6:417.5 at pp. 6-174-6-175.)

Here, the approach adopted by the trial court substantially reduced Husband's financial contribution to his children's support while increasing the total amount of funds available for their support. “It is consistent with the principles underlying the guidelines as well as the guidelines' objective of giving the children's interest top priority. (Fam. Code, § 4053 (e).)”

The CA also rejected Husband's argument that it was error to treat the lump sum retroactive benefit as income rather than as a dollar-for-dollar credit against his child support payments during the retroactivity period. He contended this method was an unlawful, retroactive modification of the July 2009 child support order.

First, the CA pointed out that the trial court could not have considered the children's SSDI benefit payments in 2009 because the SSA did not approve the children's SSDI benefit payments until 2010. Although the trial court was required to credit Husband for the children's retroactive SSDI benefit payments against his child support payments, it was “not required to give Husband dollar-for-dollar credit. As previously explained, … the trial court had the discretion to either consider the payments in fixing the guideline formula support amount, or to allow a direct credit for the payments against the guideline formula support amount. ( Irmo Drake at pp. 1162-1163.)”

The CA also addressed issues relating to spousal support and the modification of Husband's summertime visitation with the children. The points are not instructive enough to warrant discussion here.

Irmo Lane – Unpublished opinion of District 2, Division 6 (Filed February 15, 2012)

All of a support obligor's property, including an IRA, is subject to levy except as provided by law.

In January 2011, the CA affirmed a judgment that requires Husband to pay Wife child support of $6,000 per month. Husband did not satisfy his child support obligations and Wife obtained a writ of execution, requiring the sheriff to enforce the support judgment. (CCP §§ 699.510 (a); 699.520.) Wife then moved the court for an order that would require Husband to turn over to the levying officer funds held in his IRA to satisfy the judgment. (§ 699.040.)

Husband opposed the motion on the ground that it was not properly served. The trial court granted the motion, and ordered Husband to turn over the IRA funds. Husband appealed. AFFIRMED

A judgment creditor may obtain a writ of execution, requiring the county sheriff to enforce the judgment. (§§ 699.510 (a); 699.520.) The levying officer levies upon property by either taking it into custody or placing a lien on it (§ 700.015 et seq.), after which the property may be sold or otherwise disposed of to satisfy the judgment. (§ 701.510 et seq.)

If the creditor anticipates that the levying officer will have difficulty levying upon certain property (for example, where the property is in a private place or hidden) the creditor may obtain a turnover order to facilitate the levy. (§ 699.040.) The creditor may request the turnover order by ex parte application or noticed motion (§ 699.040 (a)). Within 10 days of service, the judgment debtor must file any claim of exemption. (§ 703.520 (a).) If the creditor opposes a claim of exemption, the court will conduct a hearing on the claim of exemption. (§§ 703.570; 703.580.)

Funds held in a qualified IRA are exempt from judgment enforcement but only to the extent necessary to support the debtor and his dependents when he retires, taking into account all other resources likely to be available to him upon retirement. (§ 704.115 (a)(3), (e) & (f).) The exemption only applies if the IRA is principally designed and created for retirement purposes. ( In re Dudley (9th Cir. 2001) 249 F.3d 1170, 1176.) Shielding assets is not a retirement purpose. ( Id. at p. 1177; In re Daniel (9th Cir. 1985) 771 F.2d 1352, 1358.)

In the case of a child support or spousal support judgment, the exemption is limited: the court may, upon noticed motion, determine the extent to which funds in the IRA account should be applied to satisfy the support judgment, taking into account all circumstances including the needs of the creditor, the debtor, and all persons he is required to support. (§ 703.070; 704.115, subd. (c).)

Service

The CA found no fault in the service of the turnover motion and said he had not been deprived of the opportunity to file an exemption because the time to do so will not arise until he has turned the property over to the levying officer (or the levying officer has otherwise levied upon it) and the officer has served him with notice of the levy. (§§ 700.010 (a)(3); 703.520(a).)

Levy Against An IRA

The CA also noted that all of Husband's property, including the IRA, is subject to levy except as provided by law. (§ 695.010 (a).) The CA rejected Husband's argument that his delinquency penalties should not have been included in the judgment because FC § 4725 specifically authorizes their inclusion. The CA said, “Wife obtained a judgment that included penalties, and the entire judgment is "enforceable in any manner provided by law."

There was no error in the findings and orders of the trial court.

Irmo Ent – Unpublished opinion of District 1, Division 2 (Filed February 16, 2012)

The moving party must make a persuasive evidentiary showing in support of the set-aside motion.

Husband and Wife married in 1983 and separated in 2006. In June 2009, they appeared with their counsel at a settlement conference. The minutes prepared following the conference state that “an in chambers conference was held. The parties were able to settle this matter and will be reducing it to writing and submitting to the department.” The next day, the parties and the court signed a “Stipulation and Order.”

The stipulation and order reflected the parties' agreement to parenting orders and provided that Wife had until Sept. 5, 2009 to buy out husband's interest in family residence and if she did not then the residence would be listed for sale. Various motions and contempt proceedings were to be dropped. A single sheet titled “Present offer by Greg” was initialed by the parties and their attorneys and attached to the stipulation and order. In a summary fashion, it described how the marital assets and liabilities would be distributed, how support would be managed, waived charges and reimbursements, allocated attorney fees and set the amount of Husband's equalization payment.

At a June 5, 2009 hearing, the trial court vacated some hearing dates and took the jurisdictional facts for the dissolution. The court acknowledged that a judgment was being prepared and scheduled a case management conference to resolve any remaining open issues. The parties agreed that final financial disclosures were exchanged by the parties and acknowledged Husband's payment of his past due support in full.

The judgment was filed on June 10, 2009. The “Stipulation and Order,” including the one-page agreement initialed by the parties, was attached.

In November 2009, Wife filed a motion to set aside the judgment (§ 2120 et seq.) on the grounds of her “mistake as to the terms and effect of the stipulated judgment.” She asserted a variety of complaints about the provisions for support and that her concessions as to spousal support and were mistaken. She also claimed some assets were undervalued and that the judgment failed to address several assets and failed to equally divide community debts.

Wife asserted she never understood, and therefore could not agree to, waiver of her Epstein reimbursement rights. She asserted she felt pressure to settle by Husband's intent to call their oldest adult daughter as a witness and her attorney's failure to disclose to her the value of some businesses and the residence.

Husband opposed the relief sought. Wife's reply offered some additional complaints and asserted Husband breached his fiduciary duty to her by failing to produce any business records that could be used to value the businesses in spite of repeated requests and cited his unilateral transfer of the community property business for no consideration and his failure to disclose that he was opening a new business. Wife requested a statement of decision.

At the hearing, the court stated it did not need to make any factual findings to rule on Wife's OSC and refused to issue a statement of decision. The court granted Wife's request to strike provisions in the child support order that were against public policy but denied her other requests for relief finding there were no facts to support the motion and no “mistake” that justified setting the order aside. Wife appealed. AFFIRMED

FC §§ 2122 sets forth the grounds and time limits for relief from judgments involving the division of property or the award of support in the dissolution of a marriage. The grounds include (1) actual fraud; (2) perjury; (3) duress; (4) mental incapacity; (5) as to a stipulated or uncontested judgment, a mutual or unilateral mistake of law or fact; and (6) failure to comply with the disclosure requirements.

The facts warranting relief must have materially affected the original outcome and that the moving party would materially benefit from the granting of the relief. (FC § 2121 (b).) The party seeking relief bears the burden of proving the existence of at least one of the grounds for relief specified in section 2122, and that this resulted in a material disadvantage. ( Irmo Kieturakis (2006) 138 Cal.App.4th 56, 89-90; Hogoboom and King, ¶ 16:137.3, p. 16-38.) “Because of the ‘material' effect and benefit conditions on [relief under this section] and the constitutional ‘prejudicial error' requirement, the moving party will be expected to make a persuasive evidentiary showing … substantiating a claim that the alleged basis for relief materially affected the original outcome and the moving party would materially benefit from the set-aside.” (Hogoboom and King, Family Law, supra , ¶ 16:137.5, pp. 16-38 to 16-39.)

Further, “the fact the judgment may have been inequitable to the moving party cannot by itself serve as a basis for setting aside that judgment. … [A] judgment may not be set aside simply because the court finds that it was inequitable when made, nor simply because subsequent circumstances caused the division of assets or liabilities to become inequitable, or the support to become inadequate.' ” ( Irmo Rosevear (1998) 65 Cal.App.4th 673, 684.)

Attorney negligence is not grounds for setting aside the judgment. ( Irmo Rosevear (1998) 65 Cal.App.4th 673, 686-687 [“The fact that attorney negligence is not a bar to setting aside a dissolution judgment does not transform it into a form of fraud, perjury, duress, mental incapacity, mistake, or other ground for setting aside a judgment.”]; Hogoboom and King ¶¶ 16:130 to 16:130.1, pp. 16-36 to 16-37.)

Family Code section 2120 et seq. applies when either party seeks to “undo” a property division judgment that has adjudicated particular assets or liabilities. These statutes have no effect on proceedings to determine community interests in assets or liabilities that were not adjudicated by the judgment or that were omitted therefrom. In such a case, either party may seek relief by bringing a motion under section 2556. (Hogoboom and King, ¶ 16:160, p. 16-42.)

Stipulation and Order

The CA rejected Wife's argument that the judgment should be set aside because it did not incorporate a stipulation for judgment, a settlement agreement or other written agreement. She also said the “Stipulation and Order” signed by the parties failed to provide for child support, spousal support, or the division of property. The CA disagreed, saying the stipulation contained all of the essential terms of the parties' settlement even if it was not titled “Marital Settlement Agreement.” Such a ‘memorandum of understanding' is fully enforceable.” (Hogoboom and King, ¶ 13:62.5, p. 13-20.)

The CA also rejected Wife's argument that not putting the settlement “on the record” required it to be set aside. Although doing so would have avoided the issues raised on appeal, putting the agreement on the record is not a statutory requirement. The CA acknowledged that “best practices” would require a discussion on the record demonstrating that the parties understand the terms and agree to perform them by having them acknowledge these facts on the record. Nevertheless, there is no authority for the proposition that the failure of the court to conduct such an on-the-record examination of the parties is fatal to the enforceability of the agreement.

Mistake

Wife claimed that she entered into the settlement agreement due to various mistakes of fact and law. As the moving party, she was required to make a persuasive evidentiary showing (through declarations) in support of the set-aside motion. Conclusory declarations and undocumented statements “that the result would have been different and more equitable but for the alleged ‘fraud,' ‘perjury,' ‘mistake,' etc. may be given short shrift.” (Hogoboom and King, ¶ 16:137.5, pp. 16-38 to 16-39.) The CA examined each of Wife's claims of mistake and rejected every one of them.

For example, Wife argued that she mistakenly believed she had a chance to refinance the residence and continue to live there. “Her statement that she discovered this would be impossible because she was unemployable was unsupported by facts as to why that was so. The CA also noted that the occurrence of subsequent circumstances—such as being unable to refinance the home— arguably making the division of assets inequitable—do not alone warrant setting aside the judgment. (§ 2123.) Thus mistakenly believing she would be able to refinance the home when she made the agreement, even if true, is not the type of “mistake” that supports setting aside the judgment.”

Similarly Wife's claim she was unable to evaluate the worth of the $100,000 lump sum payment is not the type of mistake that warrants setting aside the judgment. There is no single correct way to calculate the value of such a lump sum payment and any negligence by her attorney in failing to advise her of the impacts of accepting this lump sum distribution (e.g., tax consequences or the unlikelihood of obtaining refinancing absent a steady income such as from employment or monthly spousal support) would not provide grounds for setting aside the judgment. Such an order may only be granted if it is based on one of the six exclusive grounds set forth in section 2122. (See Rosevear, supra, 65 Cal.App.4th at pp. 686-687.)

Breach of fiduciary disclosure duties

The CA rejected Wife's contention the judgment should be set aside because Husband breached his fiduciary duties to her by failing to disclose the value of businesses that he managed and controlled and because his schedule of assets and debt falsely valued the restaurants at “zero;” and (3) failed to produce business records in spite of her repeated requests.

Wife cited Irmo Varner (1997) 55 Cal.App.4th 128, 144 and the CA noted the addition of FC § 2122 (f) following Varner that also states a failure to comply with disclosure requirements may be a ground for a motion to set aside a judgment. The CA distinguished Varner noting the comprehensive showing in that case and the absence of such a showing in this one. “Wife's conclusory statement, ‘I knew that the 730 expert business appraiser had an incomplete report in 2008, in which on one approach he had valued the business at $738,000 but did not have sufficient information on cash receipts to complete the report,' is insufficient.” Unlike Varner, Wife here presented no other evidence that the $400,000 value assigned to the businesses was incorrect. Also, unlike the wife in Varner, Wife was represented by counsel at all relevant times.

The order denying the motion to set aside the stipulation and judgment was affirmed.

Irmo Fong – Unpublished opinion of District 2, Division 3 (Filed February 22, 2012)

The court should baland the conduct of the parties and its impact on the litigation in resolving competing claims for FC § 271 sanctions.

Trial

A 2008 trial resulted in a finding that various real properties here and in Canada were community assets and that the debts attached to the properties were community liabilities. Shares of stock were determined to be part community and part separate property. Wife's motion to recover $400,000 in sanctions under FC §2107 (c) and sanctions of $150,000 under FC §271 resulted in an order that requires Husband to pay Wife $200,000 under § 2107(c) and an additional $100,000 under § 271.

When support was tried in 2009, the trial court found Wife left a $60,000 job in Los Angeles and eventually moved to Tennessee to live with her parents. The trial court found Wife failed to make any effort to seek employment for several years and concluded she was not entitled to spousal support.

Post-trial Attorney Fee Award

Wife claimed $611,674 in attorney fees and $220,000 in costs and interest under §§ 271 and 1101(g) based on Husband's litigation conduct and under § 2030 based on need. Husband opposed the requests and sought an award of $100,000 in fees and costs under § 271 based on Wife's litigation conduct.

The trial court found that Husband had paid a total of $286,194 toward Wife's attorney fees and noted the April 2009 awards were unpaid and on appeal. The trial court characterized Wife's settlement demands as “totally unreasonable” but also said Husband frustrated settlement in a variety of ways. The trial court concluded Wife was entitled to another fee award based on Husband's breaches of his fiduciary duties, awarding her an additional $180,000 in attorney and accountant fees. A statement of decision stated that the $180,000 fee award was made pursuant to sections 271, 2030 and 1101, subdivision (g), but the trial court refused to state the amount of fees allocated among the three statutes.

As to Husband's request for FC § 271 sanctions, the trial court concluded Wife's conduct did not warrant such an award. The trial court said that in considering the parties' requests for sanctions, it balanced their litigation tactics and how Wife's positions caused Husband to react.

Finally, the trial court addressed Husband's argument he was being sanctioned twice for the same conduct. It concluded that other distinct breaches of his fiduciary duty to Wife warranted additional sanctions. The current sanctions were for misuse of the community property. The earlier sanctions were for his failure to be forthcoming in the discovery and disclosure process.

Husband appealed. AFFIRMED

The Award of Fees Under Section 271 Was Proper

The CA rejected Husband's argument that part of the $180,000 fee award was based upon conduct in 2009 that produced an award of fees and costs under FC § 271 and thus was a double punishment.

Fees and costs can be awarded as a sanction for obstreperous conduct that frustrates settlement and increases litigation cost as long as they do not impose an unreasonable financial burden. ( Irmo Fong (2011) 193 Cal.App.4th 278, 290.) The party requesting an award need not show either financial need or any actual injury resulting from the conduct to secure such an award. ( Irmo Tharp (2010) 188 Cal.App.4th 1295, 1317.) Here, the 2009 award of was for Husband's failure to make financial disclosures and failure to be forthcoming in discovery. Wife's motion for sanctions referenced both FC § 2107 (c), which authorizes monetary sanctions for failure to comply with financial disclosure requirements but also requested an additional $150,000 in attorney and accountant fees under section 271. She argued Husband breached his fiduciary duties to produce financial information and to comply with his discovery obligations. She also contended Husband attempted to sell marital assets, profited from his control of community assets and repeatedly filed frivolous motions. In 2009, the trial court found Husband failed to comply with his financial disclosure obligations and that his conduct had frustrated settlement. Sanctions followed; $200,000 was for Husband's breach of his duties as Wife's fiduciary and $100,000 was for his obstructive conduct. Based upon this history, the CA concluded the trial court correctly determined in 2011 that the 2009 award of $100,000 was based only on Husband's failure to make financial disclosures and failure to be forthcoming in discovery. The 2011 award based on Husband's attempting to sell and otherwise exploiting community assets was based on different conduct. The Award of Fees Under Section 2030 Was Proper The CA also rejected Husband's contention that Wife's failure to make any effort to become self-supporting disqualified her for an award of attorney fees award based on need under FC § 2030. The CA observed that a trial court is authorized to award fees and costs based on the parties' financial circumstances having considered the factors set forth in section 4320. (§ 2032 (a) & (b); Irmo Sorge (2012) 202 Cal.App.4th 626, 662.) The earning capacity of the party requesting fees is part of that determination. In 2009, the trial court found Wife left a $60,000 job and eventually moved to Tennessee to live with her parents. The court found Wife had failed to make reasonable efforts to become self-supporting and awarded no spousal support. In 2010 however, the trial court concluded the nature of the litigation, the disparity in the parties' income and other considerations warranted an award of attorney and accountant fees. There was no error in these rulings. The CA distinguished the authority cited by Husband, saying that Irmo Keech (1999) 75 Cal.App.4th 860 established nothing more than that the evidence of husband's other obligations compelled the conclusion that husband did not have the ability to pay the attorney fees ordered by the trial court. “Here, in contrast, the evidence does not compel the conclusion that Husband cannot afford to pay the fee award.” Husband's Request for 271 Fees The CA held there was no error in the trial court's denial of Husband's request for FC § 271 sanctions. The trial court considered the conduct that Husband claimed was sanctionable and its impact on the litigation and then properly “balanced” the parties' behavior in determining the amount to award the parties. In this instance, the record supported the trial court's conclusion “Husband has not shown that Wife's misconduct was so egregious as to require a fee award in his favor, particularly in light of his own misconduct.”

Irmo Giegoldt – Unpublished opinion of District 2, Division 6 (Filed February 23, 2012)

A motion to vacate a judgment based on failure to comply with disclosure requirements must be brought within one year after the date on which the complaining party discovered, or should have discovered, the failure to comply.

Settlement negotiations began only two weeks after the petition for dissolution was filed and before either party had served declarations of disclosure or conducted discovery. The parties' efforts produced a stipulated judgment of dissolution in August 2006.

The stipulated judgment awarded Husband a bowling alley business, all bank accounts in his name, a boat, and 50% of the household furnishings and personal property. Wife was awarded an equalization payment of $660,000, bank accounts and IRA's in her name, a car, and the other half of the household furnishings and personal property. The stipulation recited that their property was equally divided. Child support was set at $500 per month and they each waived spousal support.

In 2011, Wife moved to vacate the stipulated judgment on the ground that Husband failed to disclose the true value of the business and his monthly income. Wife said she discovered Husband's true income during a 2011 IRS audit and only recently discovered that the business could be worth several million dollars. Wife claimed she signed the stipulation because Husband threatened her with violence.

Husband denied threatening Wife and said he did not conceal the value of the community's assets, pointing out Wife was the bookkeeper for the business for more than 20 years and knew both what he and the business earned.

The trial court denied Wife's motion on the ground the judgment was final and that Wife failed to show she qualified for the relief permitted by FC § 2100 et seq. The trial court said it was influenced by the fact Wife worked as a bookkeeper in the business in question for a number of years, possibly over two decades and there was less of a need to disclose. The trial court also noted that settlements are made for various reasons and said that even if the result is unfair, the parties were both represented and made decisions the court did not have the authority to overturn or second-guess.

Wife appealed. AFFIRMED

The CA rejected Wife's contention that a stipulated judgment is unenforceable as a matter of public policy whenever parties fail to comply with disclosure requirements and fail to exchange current income and expense declarations prior to or at the time of entering into the marital dissolution agreement.

The CA noted that a motion brought under FC § 2105 to vacate a judgment based upon a lack of disclosures is subject to the statute of limitations in section 2122(f). The motion must be brought within one year after the date on which the complaining party discovered, or should have discovered, the failure to comply. Under this rule, the statute begins to run when facts were discovered or should have been discovered. The statute is not delayed until a party has reason to suspect that fraud or perjury occurred. ( Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136.)

Here, Wife said she was unaware of the true value of the business and Husband's income until the 2011 IRS audit. The CA disagreed saying, “Wife was employed as sole bookkeeper for the business for more than 20 years and, in this capacity, she had access to and knowledge of the financial aspects of the business.” The CA also observed that Wife initiated settlement negotiations without any discussion or request for financial disclosures and was involved in finalizing the terms of the settlement agreement. Wife expressed her "sincere hope” litigation could early on and warned that a failure to settle would require her to request fees and costs sufficient to value the businesses and other properties and to “investigate the business affairs of your client." The CA said this was a knowing waiver of an appraisal in favor of a speedy settlement.

The CA rejected Wife's contention the trial court erred by not presuming her consent was produced by undue influence because Husband was unfairly advantaged by the MSA. “Wife's assertion that she did not fully appreciate the import of the stipulation is belied by undisputed evidence in the record that she was sophisticated in financial matters and fully participated in the negotiation of the stipulated judgment. Wife freely and voluntarily entered into the stipulated judgment with knowledge of all the facts. The delayed discovery rule does not apply.”

Finally, Wife argued the trial court had "equitable jurisdiction" to set aside the judgment if it was obtained by fraud, mistake or accident. The CA disagreed.

First, FC § 2123 provides that a judgment may not be set aside simply because the court finds that it was inequitable when made, or because subsequent circumstances create an inequity. Moreover, even if the stipulated judgment is inequitable, "parties are free to decide on an unequal distribution" of debts and assets. ( Irmo Brewer & Federici (2001) 93 Cal.App.4th 1334, 1349.) All the factors above discussed, including the important fact that Wife was ably represented by counsel throughout the settlement negotiations, support the trial court's decision.”

Garner v. Aronson – Unpublished opinion of District 2, Division 8 (Filed February 23, 2012)

Modification of spousal support was not required by Wife's showing that support for one of the children terminated, that her income was less and that the Husband's earnings had increased.

Husband and Wife have three children: Christopher, Lyndsay, and Daniel. Wife filed for legal separation in February 2005.

In 2005, Wife's Income and Expense Declaration revealed that as a writer and spokesperson for her LLC “Mrs. Clean Jeans,” she had a net loss of $5,384 on $87,000 in gross receipts. There was no significant improvement in her earnings thereafter. In 2010, her net earnings were $172. In 2006, a vocational expert reported Wife could earn between $80,000 and $100,000 per year based upon her educational and work history.

A 2008 judgment of dissolution incorporated the parties' stipulation that Husband would pay monthly spousal support of $6,750 plus 15% of his annual bonuses. In 2010, Wife filed an OSC to modify spousal support from $6,750 to $15,000 per month.

Wife's 2010 I&E declared her average monthly living expenses exceeded $9,000 – a sum that included a $5,223 mortgage payment. She said she survived because, in addition to spousal support of $6,750 per month, her combined monthly spousal and child support would reach $8,860 in January 2011. Wife asserted she had cut her expenses to the bone and had gone deeply in debt by attempting to continue living in the marital home.

Husband's opposition to Wife's request pointed out that her calculations omitted the 15% of his annual bonus that in 2010 raising her total monthly spousal to $10,060, several hundred dollars more than her monthly living expenses. If his bonus were the same in 2011, Wife's combined monthly spousal and child support would be $12,170, well in excess of her monthly expenses.

At the hearing, Wife stated she was earning less than she had been when she stipulated to spousal support of $6,750 per month and was concerned that without additional spousal support she would be unable to keep the family home. The trial court took the matter under submission.

The trial court's three-page minute order denied the couple's competing requests for modification of spousal support. The ruling explained that none of the three circumstances cited by Wife warranted increased spousal support.

Wife timely appealed. AFFIRMED

The Trial Court's “Ruling on Submitted Matter” Is a Statement of Decision

Unless timely requested, trial courts are not generally obligated to make written findings of fact and conclusions of law without a timely request. (Code Civ. Proc., § 632.) Generally, where, as here, the trial is completed in one day, or in less than eight hours over more than one day, the statement of decision may be made orally on the record in the presence of the parties. (CCP § 632; CRC, Rule 3.1590(n).)

Here, Wife requested a statement of decision (1) on the change of circumstances since the previous order; (2) why Family Code section 4326 did not apply; and (3) on her income. The trial court took the matter under submission and two days later a three-page written ruling was filed that explained the factual and legal basis for its denial of any modification. This satisfied the trial court's duty to provide a written statement of decision.

The CA rejected Wife's complaint that the failure of the court to show how it weighed the FC § 4320 factors warranted reversal and reconsideration of her motion. “A statement of decision need not detail the trial court's findings as to each statutory factor. On the contrary, ‘a statement of decision “need do no more than state the grounds upon which the judgment rests, without necessarily specifying the particular evidence considered by the trial court in reaching its decision.”'” ( Irmo Schmir (2005) 134 Cal.App.4th 43, 50.)

It Was Not an Abuse of Discretion to Deny Modification of Spousal Support

A showing of changed circumstances is a prerequisite to obtaining modification of a spousal support order. ( Irmo Smith (1990) 225 Cal.App.3d 469, 480.) A change of circumstances is a reduction or increase in the supporting spouse's ability to pay and/or an increase or decrease in the supported spouse's needs. In ordering or modifying spousal support, “the trial court must consider and weigh all of the circumstances enumerated in [section 4320], to the extent they are relevant to the case before it. ( Irmo Cheriton (2001) 92 Cal.App.4th 269, 302.)

While the “marital standard of living” is the reference point by which the other factors listed in section 4320 must be weighed, it is not an absolute measure of the amount of support that must be ordered. “In most instances, it is impossible at separation for either party to have sufficient funds to continue to live in the same life-style enjoyed during the marriage. After separation the parties have two households rather than one, and with California's high housing costs this represents a significant increase in living expenses.” ( Smith at pp. 488-489.)

In this regard, the termination of child support after a child turns 18 may constitute a change of circumstances warranting a modification of spousal support (FC § 4326 (a)) but a change is not required.

The Court Properly Declined to Modify Support

Wife argued that modification of support was required once she demonstrated that support for one of the children terminated, her income was less, Husband's earnings increased, and that the existing order did not meet the marital standard of living. The CA disagreed.

First, although Wife stopped receiving monthly child support for Lyndsay, her child support for the remaining minor child increased. Thus, beginning in January 2011, Wife's total monthly support payments would be $8,860, plus 15% of Husband's annual bonus. And if Husband's 2011 bonus were equal to his 2010 bonus, Wife's monthly support payments would total $12,170 - $2,702 more than her monthly expenses.

Second, the CA said Wife failed to show her income had diminished since her LLC showed a loss in 2005 and never showed any significant improvement after that date. The CA said the trial court was properly convinced Wife was not using her best efforts to become self-supporting.

Third, Wife failed to show that her reasonable needs were unmet at the time any of the support orders were entered. Since Wife's support payments exceeded her monthly expenses, she could not argue her needs were not being met. The CA, like the trial court, was not swayed by Wife's argument that she cut her monthly expenses to the bond in order to keep the family home. “Keeping the house simply may not be possible. [ Cf . Smith at page 489.] … This is a reality that wife seems reluctant to accept.”

Irmo Sanderson & Judd – Unpublished opinion of District 4, Division 1 (Filed February 24, 2012)

A"bona fide retirement" does not mandate termination or modification of post-judgment spousal support.

A 1998 judgment of dissolution set Husband's monthly spousal support obligation at $800. It was to continue until either he or Wife died, Wife remarried, or the court modified the order.

In 2010, Husband filed an OSC seeking termination of spousal support on the ground he was 70 years old and had been “unemployed” since 2008 although his occasional “freelance” earnings averaged $2,974. His other monthly income included pension payments of $112 and Social Security of $2,172. He said his assets totaled about $370,000. His average monthly expenses were $6,507.

Wife opposed the relief requested. Her I&E revealed she was 68 and was an assistant to the director of medical records for a nursing home. Wife said her average monthly income came from wages of $2,910, from spousal support of $800, and Social Security of $1,117. Her assets totaled $262,152 and her average monthly expenses were $3,620.

The trial court denied Husband's motion to terminate spousal support, but reduced it to $500 a month. The trial court's decision was based on the length of the marriage, the marital standard of living, Wife's improved marketable skills, her potential for investment income from the proceeds of the sale of the marital home, Husband's ability to pay spousal support, and the parties' respective ages and health.

Husband appealed. AFFIRMED

Failure to Terminate Spousal Support Because of Husband's Age

The CA rejected Husband's argument that “evolving case law” supports his view that no supporting spouse may ever be required to pay spousal support after reaching customary retirement age.

Spousal support is governed by statute and the trial court must weigh all of the circumstances enumerated FC § 4320. The first of the enumerated circumstances, the marital standard of living, is relevant only as a reference point against which the other statutory factors are to be weighed. The other statutory factors include: contributions to the supporting spouse's education, training, or career; the supporting spouse's ability to pay; the needs of each party, based on the marital standard of living; the obligations and assets of each party; the duration of the marriage; the opportunity for employment without undue interference with the children's interests; the age and health of the parties; tax consequences; the balance of hardships to the parties; the goal that the supported party be self-supporting within a reasonable period of time; and any other factors deemed just and equitable by the court. ( Irmo Cheriton (2001) 92 Cal.App.4th 269, 302-304.)

If trial courts were obliged to terminate spousal support whenever a supporting spouse attains customary retirement age, they would be elevating a supporting spouse's age to the exclusion of all other relevant § 4320 factors. Irmo Reynolds (1998) 63 Cal.App.4th 1373 does not require a different outcome. In Reynolds husband retired at 67 and while the trial court reduced spousal support, it based the reduced amount on husband's earning capacity, rather than his actual earnings. The appellate court reversed and remanded the case with instruction not to base support on husband's earning capacity instead of his actual earnings because to do so would require him to work well past "the generally accepted retirement age of 65 [and] no one may be compelled to work after the usual retirement age of 65 in order to pay the same level of spousal support as when he was employed."

When a supporting spouse has a "bona fide retirement," the trial court may consider the retirement a material change in circumstance warranting a modification of spousal support. Here, the trial court considered Husband's actual earnings, not his earning capacity. Moreover, Husband was not fully retired. He continued to work and he intended to continue to work even if the trial court terminated spousal support. Finally, the trial court did not maintain Wife's spousal support at the same level it had been, but reduced it by a substantial amount.

"A supporting party's retirement or cessation of gainful employment does not automatically compel a finding of a sufficient changed circumstance to warrant a decrease or termination of a support obligation. Rather, whether modification is warranted is governed by the surrounding circumstances and the trial court's consideration of relevant statutory criteria." ( Irmo Stephenson (1995) 39 Cal.App.4th 71, 80-81; see also e.g., Irmo Crobarger (1986) 178 Cal.App.3d 56, 58-60.)

There was no error in the findings and orders of the trial court.

Adoption of F.K. – Unpublished opinion of District 4, Division 2 (Filed February 29, 2012)

A man is not entitled to status as a Kelsey S. father if he made no attempt (1) to present himself to the child through the adoptive parents or through correspondence and gifts; (2) made no effort to visit the child; and, (3) provided no financial assistance during the first 22 months of the child's life.

C.L. and G.H. are F.K.'s biological parents. They had a one-month long sexual relationship in 2008 and when Mother disclosed she was pregnant, she said Father wanted her to abort the baby. Thereafter, Mother said Father never called or visited her. He did not attend medical appointments, pay for Mother's medical expenses or purchase any pregnancy or baby supplies. He provided no financial or emotional support during her pregnancy.

In January 2009, Mother decided adoption was the best option for F.K. She selected D.K. and D.E. as adoptive parents because they had adopted her first child - F.K.'s half-brother. The adoptive parents then paid for Mother's housing, food, clothing, and transportation to medical appointments.

F.K. was born in May 2009. One of the adoptive parents was in the delivery room with Mother and cut the umbilical cord. F.K. was immediately placed in the adoptive parents' care and they gave F.K. his first bottle and his first diaper and ten days later took him to their home in Washington.

A few hours after F.K. was born, Mother told her sister that F.K. had died. Mother also lied to the Agency about the identity of F.K.'s birth father in the papers relinquishing her parental rights to F.K. And when she learned Father was seeking custody, she tried to rescind her relinquishment but the Agency refused.

Father denied asking Mother to have an abortion. He said they lived together at his mother's home during the early weeks of the pregnancy. Father admitted that after they broke up, he spoke to her only once or twice although he acknowledged he always knew how to contact her. Father said he was unemployed during the entirety of Mother's pregnancy and thus was unable to offer money to Mother, or to provide her with maternity clothes or other supplies. Father said he never paid for any of Mother's medical expenses because she was on Medi-Cal and he assumed her family was supporting her.

Father said that soon after they broke up, Mother told him she suffered a miscarriage but he became suspicious about that when Mother called to tell him about her medical appointments. When Mother's aunt called to inform him that the baby was being born, he said he went to the hospital, told the staff that he was F.K.'s father, but the hospital staff would not allow him to see the child. While he was at the hospital, Father said he learned Mother planned to place F.K. for adoption.

About two weeks after F.K. was delivered, Father filed an action for custody in family court, but never notified the adoption agency of his plan to stop the adoption.

When was deposed in 2010, one of the adoptive parents took the opportunity to tell him about F.K.'s personality, his relationship with his half-brother, and F.K.'s preschool. Father did not respond and did not ask questions about the child. The adoptive parent also offered to have Father visit F.K., but Father said he was not interested. In the 22 months following F.K.'s birth, Father sent no letters, cards or gifts to F.K. and offered no financial support. He never requested to visit F.K. even though the adoptive parents were willing to permit access. Father also admitted not asking D.K. for F.K.'s address. He acknowledged that he had not had any contact with F.K. since the child was delivered in May 2009.

The proceedings in the probate court to terminate Father's parental rights and to adopt were eventually consolidated with Father's custody action. At the beginning of the trial on the consolidated cases, Father said he did not contend he was a presumed father but was, rather, a Kelsey S. father ( Adoption of Kelsey S. (1992) 1 Cal.4th 816) because Mother prevented him from being able to reach presumed father status.

The trial court found Father was a Kelsey S. father because he assisted Mother during her pregnancy by providing her with food and shelter for “a few months.” The trial court excused Father's having “virtually no contact” with Mother after their breakup by the lie Mother told that she had miscarried. The trial court also found that although Father knew of the child's whereabouts, he made no effort to communicate with the child, send him any cards or gifts and failed to make any effort to reach out to F.K. The trial court excused this by finding “one of the adoptive parents resisted all efforts by Father to establish a parental bond with F.K.”

The trial court (1) denied the petition to terminate Father's parental rights; (2) denied the petition for adoption, because Father objected to it; and (3) ordered the parties to meet and confer about the custody and transfer of F.K.

The adoptive parents appealed. REVERSED

The CA held it was error to conclude Father was entitled to status as a Kelsey S. father. The CA explained, “If a man is the presumed father of a child, the child cannot be adopted without his consent (FC § 8604 (a) unless the trial court finds, on statutorily specified grounds, that he is unfit. (FC §§ 8604 (b), 8606.) If, however, he is not a presumed father of a child, the child can be adopted without his consent, and his parental rights can be terminated, unless the court determines it is in the child's best interest for him to retain his parental rights. (FC § 7664 (b).)” ( Adoption of Daniele G. (2001) 87 Cal.App.4th 1392, 1394-1395.)

The CA said that Kelsey S. establishes that (1) if a mother unilaterally precludes her child's biological father from becoming a presumed father, and (2) if the father promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise, then his parental relationship cannot be terminated unless it is shown he is an unfit parent. ( Daniele G. at p. 1395.) The CA explained, “‘In particular, the father must demonstrate “a willingness himself to assume full custody of the child - not merely to block adoption by others.” The trial court must also consider the father's public acknowledgement of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child.'” ( In re Charlotte D. (2009) 45 Cal.4th 1140, 1148.)

Here, Father established publicly acknowledged paternity before and after F.K.'s birth and paid pregnancy and birth expenses commensurate with his ability to do so, given the evidence Father was unemployed. The CA also concluded that Father took prompt legal action to obtain custody of the child by filing - only two weeks after F.K. was born - a petition to establish a parental relationship with F.K.

But the evidence presented at trial unequivocally demonstrated that Father failed to “‘demonstrate a full commitment to his parental responsibilities - emotional, financial, and otherwise.'” ( In re Charlotte D. at p. 1148; see also In re Jerry P. (2002) 95 Cal.App.4th 793, 812.) Father never sent F.K. a card or letter and never asked for his address. In the 22 months following F.K.'s birth, Father never made any effort to meet F.K. and even refused to respond to the adoptive parent's description of F.K.'s personality, his relationship with his half-brother, and F.K.'s pre-school. The CA said, “Given that Father has not made any attempt, over nearly a two-year period, to present himself to F.K., either through a discussion with the adoptive parents, through a card or pictures, or through visiting F.K., there does not appear to be any evidence that Father has made an effort to form a bond with F.K., or even introduce himself to F.K. Father expressed little interest in learning about F.K. by not asking any questions about F.K., or the adoptive parents who were raising F.K. There is no substantial evidence of Father demonstrating a full commitment to his emotional parenting responsibilities.”

Moreover, “since the time F.K. was born, Father has not provided any financial assistance to the adoptive parents. Father never sent money for F.K. directly to the adoptive parents or through the attorneys or the Agency. Father stated that the only purchase he has made for F.K. was a week's worth of clothes; however, it appears from the record that he never sent the clothes to F.K. Additionally, Father has never sent F.K. a Christmas gift or birthday gift. Given that Father has provided no financial assistance for the first year and ten months of F.K.'s life, we conclude that there is not substantial evidence of Father demonstrating a full commitment to his financial parenting responsibilities.”

The CA rejected each of Father's challenges to these observations and noted in particular that there was nothing in the record of the proceedings that suggested either of the adoptive parents interfered with Father's access to the child.