Family Law Case Studies

Family Law Case Studies - Volume 11, Number 1

Published and Unpublished Appellate Court Opinions for January 2013

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,

Published and unpublished slip opinions can be secured from

Published Opinions

Irmo Melissa (2013) ___ Cal.App.4th ___ (4/2 - Opinion ordered published January 2, 2013)

The law applicable on the date of execution of a PMA determines its validity.

Husband and Wife met in 1984.  Both had been married before.  Husband had a net worth of over $2 million.  Wife worked as a nurse and had a net worth less than Husband's.  They agreed to marry but Husband said he wanted a prenuptial agreement first.

Husband arranged for the PMA to be prepared.  Wife had no input about the wording of the document.  Wife said she first saw the agreement three days before the wedding, and when all the invitations had already been sent out.  Husband's attorney told her she could have her own attorney review the agreement, but she elected not to do so.

The agreement included the following discussion of spousal support:  "Each of the parties acknowledge that while the case of Irmo Higgason (1973) 10 Cal.3d 476 provides that the potential for the future right of spousal support cannot be waived by an agreement, the parties acknowledge that the law is in a state of flux ….  Therefore, for mutual consideration of this waiver and of the expected marriage, each party mutually releases the other and waives any potential future rights which would have or may have accrued for spousal support."

Wife stopped working full time in 1997 to care for their disabled son.  The parties separated in October 2009 after which Wife continued to live with and care for their child who was 24 years old.  Wife is unemployed.

The trial court concluded it was required to apply the law in effect in 1985 to the parties' agreement.  The trial court determined that in 1985, waivers of spousal support were void as against public policy.  In addition, the court determined the spousal waiver was unenforceable as unjust.  Husband appealed.  AFFIRMED

Premarital Agreements

After discussing at length the evolution of spousal support waivers in California, the CA said that in 1985, the status of the law was that prenuptial agreements would be enforced if the provisions did not objectively encourage or promote dissolution.   However, it was also determined any written waiver of the statutory obligation of spouses to mutually support each other was void as being contrary to public policy.

Here, Husband and Wife's spousal support waiver was based on their belief that the law on this issue was then in a "state of flux."  The CA disagreed, "The issue was not in a ‘state of flux' until after the Legislature adopted the Uniform Premarital Agreement Act [in] 1986.

Husband and Wife's 1985 Premarital Agreement

"The law applicable to the validity and enforcement of premarital agreements turns on the date of execution."  (Hogoboom & King, Cal. Practice Guide:  Family Law (The Rutter Group 2012) ¶ 9:141, p. 9-36.16.)  This is a pre-1986 agreement and the law and public policy then in effect invalidated the waiver of spousal support.

Even so, relying on Pendleton, Husband argued the trial court should have applied "contemporary public policy" permitting spousal support waivers because that is exactly what the Pendleton court did.  The CA disagreed noting Pendleton, decided in 2002, concerned interpretation of a premarital agreement executed in 1991 and was governed by the provisions of the Uniform Act.
The CA concluded the trial court properly applied the law as it then existed in 1985.  "It would be unfair to apply the law and public policy as it existed between 2000 to 2002, but not also give [Wife] the benefit of the many safeguards and protective requirements enacted for post-2002 agreements, i.e., requiring independent legal representation and seven days between when the agreement is presented to a party and the time it is signed.  (§ 1615 (c)(1) & (2).) The trial court correctly determined the 1985 waiver was unenforceable, applying the holding of Higgason and majority rule existing at the time.

Dwight R. v. Christy B. (2013) ___ Cal.App.4th ___ (4/2 -- Opinion filed January 7, 2013)

Allegations that a mandated reporter conspired with county officials to violate the rights of a father and his children by falsely reporting child sexual abuse is protected activity that is subject to a special motion to strike.

In September 2008, Dwight and his former wife N. worked out a temporary custody and parenting agreement for their two daughters, R1 and R2, then ages five and three, respectively.  N.  did not express a concern during the mediation that Dwight had sexually abused the girls.

Later in 2009, the parties returned to mediation.  Dwight sought unsupervised overnight visits.  N. wished to continue supervised visitation.  She again did not express a concern that Dwight might sexually abuse the girls.  Dwight and N. did not reach an agreement but the mediator recommended unsupervised overnight parenting time for Dwight on alternate weekends.

In 2009, N. accused Dwight for the first time of sexually abusing the girls.  The family court rejected the accusation as unfounded and adopted the mediator's recommendation.  Even though unsupervised visits were authorized Dwight made certain his parents were present as a precaution against N.'s false accusations of sexual abuse.

Shortly after the first overnight visit in 2009, Dwight discovered that R1 had her first therapy session with Christy.  Dwight alleged that N. and her mother, L.S., arranged for therapy session with Christy B. because N's mother L.S. had a long-standing professional relationship with this counselor.  Dwight alleged N. and L.S. conspired with Christy and other social workers falsely to accuse Dwight of sexually abusing the girls.  In their professional capacities, Christy, L.S., and the social workers are mandated reporters of suspected child abuse or neglect.  (Pen. Code, §§ 11165.7 (a), 11166 (a).)

Christy explained that at her first therapy session with R1, she asked the child to draw pictures of "a tree, a house, herself and her favorite animal."  Christy claimed that based on the pictures R1 drew of her father's house and sleeping arrangements she shared with her father she developed a reasonable suspicion that there may be sexual abuse.  Christy denied prompting R1to make statements or to create drawings to conjure up allegations of sexual abuse by Dwight.  Christy said the only action she took was notifying child protective services of her suspicion as a mandated reporter.

Dwight's forensic psychologist testified there were no valid protocols or standards for making reliable inferences about the dynamic meaning of children's drawings.  He criticized Christy's "extremely poor method" of obtaining information from R1 and for her "utterly unfounded assumptions about what the drawings signified."

N's mother L.S. claimed she recommended that N. take both R1 and R2 to see a counselor because R1 wet her bed every night and that both R1 and R2 exhibited signs and made statements that L.S. believed indicated Dwight had sexually abused the girls.  Shortly after the counseling began San Bernardino County social workers instituted juvenile dependency proceedings for the girls.  During an April 3 interview with social workers, R1 denied that anyone had ever touched her inappropriately.  The juvenile court did not sustain any dependency allegations against Dwight, including any sexual abuse allegations, and dismissed the dependency proceedings in February 2010.
In December 2010, Dwight filed a complaint against Christy and others alleging a violation of his civil rights by voluntarily collaborating with and participating in the various actions undertaken by the social worker defendants to remove the girls from his care based on false accusations and fabricated evidence of child sexual abuse.

Christy filed a special motion to strike.  The trial court granted the motion.  Dwight appealed.  AFFIRMED.

Immunity of Mandated Reporters & Voluntary Reporters

A mandated reporter must report actual or reasonably suspected child abuse. (Pen. Code, § 11166 (a).)  Since it is a crime not to report known and reasonably suspected child abuse, mandated reporters have unqualified, absolute immunity from criminal and civil liability.  (Pen. Code, § 11172 (a).)  A mandated reporter is also absolutely immune from civil and criminal liability for "conduct giving rise to the obligation to report [including] the collection of data, or the observation, examination, or treatment of the suspected victim or perpetrator of child abuse," and even for knowingly or recklessly making a false report or falsifying evidence of child abuse or neglect.  (Storch v. Silverman (1986) 186 Cal.App.3d 671, 681.)

Voluntary reporters on the other hand, have qualified immunity from civil or criminal liability "as a result of any report authorized" under the Reporting Act.  (Pen. Code, § 11172 (a).)  Voluntary reporters are immune, "unless it can be proven that a false report was made and the person knew that the report was false or was made with reckless disregard of the truth or falsity of the report."  (Ibid.) 

Code of Civil Procedure Section 425.16

CCP § 425.16 allows a party to bring a special motion to strike a meritless SLAPP suit at an early stage of the litigation.

The motion is a two-step process.  First, the court determines whether the defendant has made a threshold showing that the challenged cause of action "arises from" protected speech or petition activity; viz., whether the "act" underlying the challenged cause of action fits one of the four categories of protected activities.  Second, if the court finds the defendant has met this threshold burden, it then determines whether the plaintiff has demonstrated a probability of prevailing on the merits of the plaintiff's claim.  To meet this burden, the plaintiff must demonstrate that the complaint is legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment.  (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.)

Christy's Activities Were Protected

A cause of action "aris[es] from" protected speech or petition activities if the act underlying the claim is "itself" an act in furtherance of the right of free speech or petition.  (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78; Code Civ. Proc., § 425.16, subd. (b)(1).)  This includes statements or writings made "in connection with an issue under consideration or review by a . . . judicial body, or any other official proceeding authorized by law . . . ."  (See Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 198.)  These protected activities include acts preparatory to or in anticipation of the bringing of an action or other official proceeding.

Here, Christy's injury-producing conduct was the alleged conspiracy with social workers and others to falsify evidence that Dwight was sexually molesting R1, her improper coaching of R1 to draw illicit pictures of herself and Dwight, and her mandated report to child protective services of her allegedly false suspicion that Dwight was sexually abusing R1.  As such, the section 1983 claims are based on acts preparatory to or in anticipation of official proceedings, namely, an investigation by child protective services of Christy's suspicion that Dwight was sexually abusing R1, and possible juvenile dependency proceedings for the girls.  (CCP § 425.16 (e)(2).)

Unlawful or criminal activities do not qualify as protected speech or petition activities under the anti-SLAPP statute.  But the CA rejected Dwight's argument that Christy's alleged coaching and conspiracy activities were unlawful because "there is no uncontroverted evidence that Christy's alleged coaching or conspiracy activities, as Dwight characterizes them, were unlawful. … ¶ When the defendant's protected activity may or may not be unlawful, the defendant may invoke the anti-SLAPP statute unless the activity is unlawful as a matter of law.  An activity may be deemed unlawful as a matter of law when the defendant does not dispute that the activity was unlawful, or uncontroverted evidence conclusively shows the activity was unlawful."  (Compare, Flatley v. Mauro (2006) 39 Cal.4th 299, Lefebvre v. Lefebvre (2011) 199 Cal.App.4th 696; Siam v. Kizilbash (2005) 130 Cal.App.4th 1563; Chabak v. Monroy (2007) 154 Cal.App.4th 1502.)

Dwight Did Not Establish a Probability of Prevailing

Dwight failed to adduce competent, admissible evidence that his claims were legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment.  His burden was to establish that his claim had "minimal merit" to avoid being stricken pursuant to Code of Civil Procedure section 425.16. (Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1513.)  The court's job was not to weigh the credibility nor compare the probative strength of competing evidence (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821), and it was required to disregard declarations lacking in foundation or personal knowledge, or that were argumentative, speculative, impermissible opinion, hearsay, or conclusory.  (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26.) 

Here, Dwight had to show there was an agreement between Christy and at least one social worker or other state actor to deprive Dwight and his daughters of their federal constitutional rights.  Alternatively, he was required to show that Christy participated in "joint action" with social workers or other state actors to deprive Dwight or the girls of their federal constitutional rights.  "None of the evidence adduced on the motion supports a reasonable inference that Christy engaged in such a conspiracy or joint action."  Dwight's allegations were merely speculation that Christy conspired or engaged in joint action with social workers and L.S. to fabricate false allegations that Dwight was sexually abusing the girls.

Christy's Immunity

Finally, even if a sufficient prima facie showing is made, the claims may be stricken if the defendant can establish a complete affirmative defense to the claims.  In this case, the trial court granted Christy's motion because it concluded she established a complete affirmative defense to the section 1983 claims -- her absolute immunity to the claims as a mandated reporter under Penal Code section 11172.

The CA disapproved this conclusion because while this appeal was pending, the opinion in Arce v. County of Los Angeles (Dec. 17, 2012) ___ Cal.App.4th ___ was filed.  This case holds that mandated reporter immunities under Penal Code section 11172 may not be asserted as a defense to section 1983 claims.  Nevertheless, in this case Dwight's claims still had to be stricken because he did not make a prima facie evidentiary showing that Christy conspired or engaged in joint action with state actors to deprive him or the girls of their federal constitutional rights.

Irmo Facter (2013) ___ Cal.App.4th ___ (CA 1/1 -- Opinion filed January 14, 2013)

An unconscionable spousal support waiver does not, standing alone, render a PMA unenforceable under former FC § 1615.

Husband and Wife entered into a four-page PMA drafted by Husband in 1994.  Two exhibits were attached that set forth Husband's separate property of about $3 million and disclosed his earnings of between $475,000 and $700,000 per year. 

Paragraph 1 of the PMA states that none of the property the parties would acquire during their marriage would be community property.  Paragraph 2 sets forth the property and cash Wife was to receive in the event of divorce.  Paragraph 3 declares the various assets Wife was to receive "constitute her sole right to property acquired during the marriage and to support."

The parties married the next day and separated in 2010 after 16 years of marriage.

Husband opposed Wife's request for an award of temporary spousal support and attorney fees by arguing the PMA contained a waiver of spousal support.  In 2011, he changed his mind by conceding the limits in the PMA on child support were unenforceable and agreed not assert the PMA as a bar to spousal support or to the payment of Wife's attorney fees.  Husband explained that he made these concessions to avoid a claim by Wife that some $10 million in assets accumulated during the marriage were community property because the entire PMA was unenforceable.

Wife's need for spousal support was beyond dispute.  When the couple met, Wife was selling shoes at Nordstrom's.  Husband confirmed that, with his assent, Wife never worked for compensation during the marriage.  He told her he would take care of her financially for as long as they were together.

Wife explained that she signed the PMA because she believed it protected her interests.  She understood that if the marriage failed she would receive spousal support and half of the value of the marital home, and would have a joint interest in the money he had earned during marriage.
Husband is a partner in his law firm since 1989.  When they discussed marriage, Husband told Wife that he had worked hard to get where he was in his career and wanted his earnings to be legally his.  He also told her he did not want to have any continuing financial obligations to her if their marriage ended.  After he drafted the PMA, he gave it to Wife and told her to get independent legal advice from a family law attorney.  She did so.

The trial court found the spousal support waiver was unconscionable and concluded the provision was not severable from other terms of the PMA.  The court declared the PMA unenforceable in its entirety.   Husband appealed.

The CA agreed the spousal support waiver was unconscionable and for this reason was invalid, but held this portion of the PMA was severable and the trial court should have enforced the balance of the contract.  AFFIRMED IN PART, REVERSED IN PART

The Spousal Support Waiver

On appeal, Husband attempted to isolate and preserve the validity of the property provisions in the PMA by arguing the contract did not contain a "legally effective waiver of spousal support."  He argued the "conscionability" of the support provisions was irrelevant for both this reason and because he had abandoned any attempt to enforce the waiver.  The CA dismissed the arguments.

"[T]he trial court's duty was to interpret the Agreement, not Husband's 180-degree reversal of his prior position."  Paragraph 2 spelled out what Wife was to receive in the event of divorce.  Paragraph 3 declares, "The provisions of paragraph 2 constitute [Wife's] sole right to property acquired during the marriage and to support, and replace or supersede any entitlement to such property that [Wife] might otherwise have under law."

There was nothing ambiguous about the provision.  The CA said that even if the agreement were arguably uncertain because the word "support" was used instead of "spousal support," "an ambiguous or uncertain provision of a contract ‘must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it.  (Civ. Code, § 1649.)'"  The CA said that although the waiver could have been more explicit (cf., Irmo Pendleton and Fireman (2000) 24 Cal.4th 39, 41), Paragraph 3 was plainly a waiver of spousal support.

Spousal Support Waivers Executed in 1994 Are Not Illegal

The CA said the trial court erred in finding that Irmo Higgason (1973) 10 Cal.3d 476 rendered the PMA illegal from its inception.  The CA said Pendleton holds that spousal support waivers are not invalid per se: "[W]hen entered into voluntarily by parties who are aware of the effect of the agreement, a premarital waiver of spousal support    Such agreements are, therefore, permitted under [FC §] 1612 (a)(7)."

The Spousal Support Waiver Is Unconscionable

Although Pendleton does not set a precise standard for unconscionability, the opinion offers the following guideline: "It is enough to conclude here that no public policy is violated by permitting enforcement of a waiver of spousal support executed by intelligent, well-educated persons, each of whom appears to be self-sufficient in property and earning ability, and both of whom have the advice of counsel regarding their rights and obligations as marital partners at the time they execute the waiver."  (Pendleton at pp. 53--54.)

In this case, Wife was not a "well-educated person, self-sufficient in property and earning capacity."  Rather, she was a recently unemployed high school graduate with two minor children, living rent-free in the home Husband had financed for them.  In contrast, Husband was an accomplished attorney, a graduate of Harvard Law school who earned roughly half a million dollars a year and had $3 million of separate property at the time of the marriage.  Wife had no property of her own, suggesting a "significant inequality of bargaining power."  Husband not only drafted the Agreement but also told Wife that the spousal support waiver was non-negotiable.

Moreover, Husband and Wife's marriage lasted 16 years, during which Wife, with Husband's assent, did not pursue her education or seek gainful employment.  Instead, she devoted her efforts to child rearing and maintaining the family home, while Husband continued successfully to pursue his career.  "Without reasonable spousal support, the evidence supports the conclusion that Wife will never come close to replicating the marital standard of living."  "Compared to what she is likely to receive in court-ordered spousal support, these assets are manifestly inadequate."

The CA said, "We have little difficulty in concluding that the Agreement's spousal support waiver is presently unconscionable."

The Entire Agreement Is Not Unenforceable

Unconscionability does not, standing alone, render a PMA unenforceable in its entirety under former FC § 1615.  To render an agreement unenforceable, the contesting spouse also must have lacked actual or constructive knowledge of the assets and obligations of the other party, unless that spouse waived knowledge of such assets and obligations.  (Irmo Bonds (2000) 24 Cal.4th 1, 15; § 1615 (a)(2).)

Here, Wife did not claim she entered into the Agreement involuntarily.  Thus, the trial court had to find both unconscionability and an absence of fair and reasonable disclosure of Husband's premarital assets in order to deem the entire Agreement unenforceable.  The trial court concluded that Husband violated this provision by failing to list the jointly held marital home as his separate property.  The CA disagreed.

The CA said the trial court's factual finding that a failure to disclose the jointly owned residence in the PMA did not amount to a failure by Husband to provide fair and reasonable disclosure.  Nothing in the record suggested Wife was unaware of the status of the residence and she did not claim that Husband failed to disclose any other asset.  "Accordingly, the dual requirements of former section 1615 (a)(2), have not been satisfied and the agreement as a whole is not unenforceable."


"In deciding whether severance is available, ‘Courts are to look to the various purposes of the contract.  If the central purpose of the contract is tainted with illegality, then the contract as a whole cannot be enforced.  If the illegality is collateral to the main purpose of the contract, and the illegal provision can be extirpated from the contract by means of severance or restriction, then such severance and restriction are appropriate.'"  (Marathon Entertainment, Inc. v. Blasi (2008) 42 Cal.4th 974, 996.)

Civil Code § 1598 provides that when a contract has a single object that is unlawful, the entire contract is void.  Civil Code § 1599 adds that if a contract has several objects one of which is lawful the contract is void as to the unlawful object but is valid as to the rest.  Here, the PMA, (1) waived community property rights; (2) limited Wife's right to support; and (3) limited Husband's child support obligation.  The limits on support do not invalidate other provisions that relate to property rights.

"It is well established that parties may lawfully waive their rights to community property. … ¶ ‘Insofar as an antenuptial agreement relates to the disposition of the property of the respective parties, and does not seek to alter support obligations imposed by law, it will be upheld.'"  (Dawley at p. 351.)  

The provisions of this PMA effectively constitute a waiver of community property rights."
The CA also faulted the trial court for applying equitable considerations to the severance issue.  "In the context of prenuptial agreements, fairness, for better or worse, is not the touchstone.  Instead, the focus is on disclosure of assets.  … The language adopted [in section 1615] was intended to enhance the enforceability of premarital agreements and to convey the sense that an agreement voluntarily entered into would be enforced without regard to the apparent unfairness of its terms, as long as the objecting party knew or should have known of the other party's assets, . . ."  (Bonds at pp. 16--17.)

Irmo Hibbard (2013) ___ Cal.App.4th ____ (CA 1/4 -- Opinion filed January 15, 2013)

An MSA that provides spousal support shall not be reduced to less than $2,000 per month is a non-modifiable order that terminates only upon the death of one of the parties or wife's remarriage.

Husband and Wife separated in 2001 after 30 years of marriage.  In 2011, Husband's psychotherapist testified that the PTSD that had troubled Husband since 1970 had by then rendered him totally disabled.

In 2002, the parties executed an MSA that declared they were then both in "good health" and employed.  Wife's annual earnings totaled $27,000; Husband's were $84,000.  Their MSA was incorporated into a judgment of dissolution that obligated Husband to pay Wife $4,000 per month in post judgment spousal support.  The MSA allowed a reduction of support when their minor child because an adult and the family residence was sold.

The reduction was to "be based upon a change of living expenses for [Wife], but shall not be reduced to an amount lower than two thousand dollars per month, and it is agreed by the parties that spousal support is an ongoing obligation of [Husband], and will only terminate upon [Wife's] death or remarriage, or the death of [Husband]."  In May 2002, Wife's support was reduced to $2,000 per month.

In 2012, Husband filed a motion to terminate spousal support, alleging that his PTSD limited his ability to work more to only two or three hours per day.  Husband said he planned to apply for "a service connected disability."  He alleged Wife's income had increased to $36,000 per year and argued that his unanticipated disability was a changed circumstance that warranted modification of support.  He asked that it be terminated.

Wife's response pointed out that Husband's law practice grossed $207,760 in 2010.  She explained that her income was limited to a teacher's retirement of $965 per month, Social Security benefits of $773 and spousal support.  She said she was just barely getting by.

The trial court determined that the MSA did not terminate its jurisdiction to address support and ruled that although Husband's circumstances were different, support was non-modifiable.  Support could not be less than the agreed-upon floor of $2,000 per month.  Husband's motion was denied.

Husband appealed.  AFFIRMED

 "‘The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties.  If contractual language is clear and explicit, it governs.'"  (People v. Shelton (2006) 37 Cal.4th 759, 767; accord, Irmo Simundza (2004) 121 Cal.App.4th 1513, 1518; Irmo Davis (2004) 120 Cal.App.4th 1007, 1018; Irmo Iberti (1997) 55 Cal.App.4th 1434, 1439-1440.  Generally, "[s]pousal support awards and agreements, temporary as well as ‘permanent,' are modifiable throughout the support period . . . except as otherwise provided by agreement of the parties.  [(FC §§ 3603, 3651 (c)(1), 4333.)]"  "Unlike child support jurisdiction, spousal support jurisdiction does not necessarily continue post-judgment and may be divested by the terms of the order.

If a marriage is of long duration, there is an implied statutory retention of jurisdiction over the amount and duration of spousal support.  "Even so, a retention of spousal support jurisdiction after a ‘lengthy' marriage does not limit the court's discretion to terminate spousal support in later proceedings on a showing of changed circumstances.  [(FC § 4336 (c).)]"  (Hogoboom & King, Cal. Practice Guide:  Family Law, supra, ¶17:93, p. 17-32.6.)  Nevertheless, a court's spousal support jurisdiction may be limited when, as here, an MSA specifically provides that the spousal support is not subject to modification or termination.  (§ 3591 (c); see also § 3651 (d).)

The CA ruled that Husband and Wife's MSA stipulates that spousal support is not modifiable except for a specific circumstance that would warrant a reduction to $2,000 per month.  The MSA does not permit the trial court to consider other intervening circumstances even if it seems unfair or inequitable not to do so.  (Irmo Aninger (1990) 220 Cal.App.3d 230, 238.)  The CA cited Irmo Rabkin (1986) 179 Cal.App.3d 1071, 1075; Irmo Sasson (1982) 129 Cal.App.3d 140, 142; Irmo Davis (2004) 120 Cal.App.4th 1007, 1017-1018; and Irmo Alter (2009) 171 Cal.App.4th 718) to illustrate this point.

Here, Husband and Wife's MSA states spousal support would only terminate upon Husband's death or Wife's death or remarriage.  The MSA further provided that support could be reduced from $4,000 per month when their daughter graduated from high "but [never] to an amount lower than $2,000 per month."  The CA said these provisions "make the support order non-modifiable to less than $2,000."

The CA rejected Husband's argument that the MSA was modifiable unless it unequivocally made spousal support judicially non-modifiable.  "Not so.  It is well established that no specific formula or " ‘magic' words" are required to preclude modification.  (Irmo Jones (1990) 222 Cal.App.3d 505, 510; see Irmo Bennett (1983) 144 Cal.App.3d 1022, 1025-1026 [holding that despite lack of term " ‘irrevocable,' " clear intent of parties was non-modifiable support obligation].)"

The CA also rejected Husband's contention that his disability was not foreseeable and, thus, because of either changed circumstances or impossibility, support should be modified.  Husband had been suffering with PTSD for 30 years when he agreed to the floor on spousal support.  He was 52 at the time and must have known retirement lay ahead.  "Considering the judgment as a whole and the circumstances of the parties when they signed the MSA, we conclude the parties did not intend that a reduction in Husband's income, either through disability or retirement, or some combination thereof, would create changed circumstances warranting modification of the support agreement."

Thus, the spousal support order in the MSA is not modifiable until one of the stipulated circumstances occurs, namely, the death of either party or the remarriage of Wife.

Irmo Campi (2013) ___ Cal.App.4th ___ (CA 1/4 -- Opinion filed January 24, 2013)

There is no right to counsel in dissolution proceedings.

Husband and Wife married in 1981 and separated in 2002.  Wife's petition for dissolution was filed about two years later.  Although Wife was employed in 2004 and 2005 as a pharmacy technician, she was injured in a traffic accident and was thereafter unable to work.  In 2009, Husband received a disability retirement.

In 2007, Husband and Wife stipulated to an order that Husband would be awarded the family residence at a value of $679,000 and that he would assume the debt attached to the property.  They also agreed Husband would be reimbursed for his separate property contribution of $60,000 toward the down payment and that after other charges and reimbursements, Wife would be entitled to between $250,000 to $270,000 for her share of the community's interest in the residence. Trial of the remaining issues was scheduled for December 2010.

At trial, the principal dispute litigated was the credits due to Husband against the stipulated value of the residence.  The difference between the parties was due to Husband's contention that he had overpaid support by $139,000.  Following a trial, the trial court, as the parties earlier agreed, awarded the home to Husband at a value of $679,000 and concluded Husband's equalizing payment was $219,233.

In March 2011, the trial court made orders consistent with its statement of decision and ordered Husband to prepare the judgment.  Instead of doing so, Husband obtained new counsel and filed a motion for a new trial, mostly on the ground of ineffective assistance of counsel.  He also requested a modification of the stipulated QDRO entered in January 2011 and a modification of spousal support.

Husband's complaint that he was ineffectively represented was based upon his contention (1) that the residence should have been valued as of the date of trial and (2) the QDRO based on the time rule was unfair because Husband's post-separation earnings increased the amount of the benefits.  The trial court overruled Husband's objections and entered a judgment that incorporated the terms of its statement of decision.

Husband appealed. AFFIRMED

Valuation Date

The CA rejected Husband's argument the family residence should have been valued as of the date of trial because (1) the issue was not raised during the trial and (2) because the parties earlier stipulated to an order Husband would be awarded the home at a value of $679,000 and the mortgage.  Neither party ever suggested a different value or sought to rescind the stipulation and order they designed in 2007.

Ineffective Assistance of Counsel

The CA characterized Husband's argument that he is entitled to a new trial because of ineffective trial counsel as "frivolous."  Neither the Family Code nor decisional law establishes a right to counsel in dissolution proceedings.

"Generally speaking, the right to counsel has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation."  (Walker v. State Bar (1989) 49 Cal.3d 1107, 1116.)  "Indeed, the general rule is that attorney neglect in civil cases, if any, is imputed to the client.  (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d. 892, 895.)  ¶  [I]n dissolution proceedings there is no right to counsel, which moots Husband's arguments about the alleged ineffective assistance his trial counsel provided."

Irmo Turkanis & Price (2013) ___ Cal.App.4th ___ (CA 2/8 -- Opinion filed January 30, 2013)

A FLARPL is not extinguished by an award of the encumbered property to the other party. FC § 2034 Permits The FLARPL To Be Expunged.

Husband and Wife married in 1995 and separated in 2003.  A status-only judgment of dissolution was entered in November 2005.  Trial of the reserved issues was completed in two phases.  The first phase was to determine the valuation of properties and the second phase was to allocate the community assets, liabilities, charges and reimbursements.

Spitzer and Kramer associated in as Wife's counsel during the pendency of the valuation trial.  They were the 10th and 11th attorneys to enter appearances for Wife.  Wife did not have funds available to pay Kramer's retainer fee and thus agreed that Kramer's firm could seek to record a FLARPL pursuant to section 2033 against one of the two single family residences the parties' owned.

Pursuant to FC § 2033 (b), Wife served and filed a notice of intent to record Kramer's FLARPL in the amount of $140,000.  Husband offered no objection to Kramer recording a FLARPL against a property located at 1234 Bundy property but objected to having it extend to a second property on Bundy.  Husband and Wife then stipulated to the form of a deed of trust that effectuated a FLARPL for Spitzer of $150,000 against Wife's community property interest in 1234 Bundy.

The trial court's judgment divided the parties' assets.  From the community estate, the court awarded Husband both Bundy properties, among other things.  After tracing the proceeds of the sale of Husband's business, the division of presumptive community assets, the confirmation of separate property, and the determination of reimbursements and credits owing, the court determined that Wife owed Husband an equalization payment of $154,289.

Husband moved "to deny enforcement of, and to extinguish, expunge, and/or limit real property liens."  He argued that the FLARPL's were unjust under the circumstances because (1) Husband had substantial separate property claims; (2) after the FLARPL's were recorded the Bundy properties diminished in value; and (3) the court had already made two awards of fees and costs to Wife totaling $125,000.  He asserted that rendering the property awarded to him liable for payment of Wife's attorney fees would produce an inequitable division of property.

The trial found that during trial 1234 Bundy declined in value and that Wife had received substantial distributions of cash and owed an equalization payment to Husband.  The court stated that ordering Husband to pay Kramer's and Spitzer's FLARPL's, and then adding that amount to the equalization payment, was not a fair reading of the Family Code.  The trial court granted Husband's motion and extinguished and expunged Kramer's and Spitzer's FLARPL's.

Kramer filed a Borson motion for fees.  In re Marriage of Borson (1974) 37 Cal.App.3d 632 permits attorneys who have been discharged while an action is pending, with the former client's consent, to file a motion for their attorney fees.  On behalf of Wife, Kramer was seeking fees from Husband in the amount of $273,109.  Husband's response argued that Kramer and Wife's fee request was unreasonable and that her conduct needlessly prolonged litigation frustrated settlement.  He asked for FC § 271 sanctions that he said should offset any fee award.

The trial court noted earlier awards of $125,000 in fees and costs.  The court found Husband had $5,704 net monthly income against monthly household expenses of $14,230 for himself, his spouse, the parties' daughter, and his spouse's two children.  Husband's debts exceeded $1.1 million including $525,340 he owed his counsel in addition to $212,289 in fees previously paid.  Wife owed him an equalization payment but there was no obvious source of payment.

Wife was not working and had no income, although she was a licensed attorney and held a real estate brokers license.  Her expenses were $5,508 per month.  She had $40,000 in credit card debt and owed Husband approximately $212,000.  She had paid her various prior counsel $415,000 in fees but owed them an additional $677,730.

The trial court found Wife's conduct warranted an offset against the fee request of her Kramer under section 271.  The trial court ordered Husband to pay Kramer $39,000 as a contribution to Wife's fees.

Kramer Spitzer and Wife appealed.  AFFIRMED

Family Law Real Property Liens

FC §§ 2033 and 2034 permit the court to grant or deny a FLARPL that encumbers a spouse's interest in community real property to pay attorney fees and costs in a dissolution action.  The encumbering spouse must serve notice of the FLARPL on the non-encumbering spouse at least 15 days before recording it.  (§ 2033 (b).)  The non-encumbering spouse may object specifying the reasons why it "would likely result in an unequal division of property or would otherwise be unjust under the circumstances of the case."  (§ 2033 (c)(1)-(3).)

FC § 2034(a) provides that an outright denial or limitation of the FLARPL can be based on a finding that it would impair the encumbering party's ability to meet his or her fair share of the community obligations or because it would be unjust.  Additionally FC § 2034(c) provides the "court has jurisdiction to resolve any dispute arising from the existence of a [FLARPL]."

A FLARPL is not extinguished by awarding the encumbered property to the other party.

The court's division of community or quasi-community property does not ordinarily affect the enforceability of valid, preexisting liens on the property.  (FC § 916(a)(2); Lezine v. Security Pacific Fin. Services, Inc. (1996) 14 Cal.4th 56, 65 [a valid lien attached to community property follows the property even after the court awards it to the non-encumbering spouse in property division].)  Here, there was no dispute that, at the time the FLARPL's were created, 1234 Bundy was presumptive community property and that Wife and her attorneys had complied with the statutory requirements of FC § 2033.  Thus, the trial court's award of 1234 Bundy to Husband as his separate property did not automatically extinguish the liens.

FC § 2034 Permits The FLARPL To Be Expunged

The CA characterized the real focus of the appeal to be whether a FLARPL can be expunged when a dispute arises as to its propriety after it was recorded.  The CA concluded it could.

The CA said FC 2034(c) unambiguously gives the court "jurisdiction to resolve any dispute arising from the existence of a [FLARPL]" whenever they may arise.  "The plain language of the subdivision does not impose any timing requirement or otherwise limit the court's ability to revisit the propriety of a FLARPL."  It is not limited to the ex parte process before the FLARPL exists.

The encumbering spouse may apply to have the lien expunged "if that party concludes he or she improvidently executed the FLARPL.  Leading commentators agree [and also point out that] whether [the applicant is] the encumbering spouse or the non-encumbering spouse, [he or she] may seek a determination on the enforceability of a FLARPL" (Citing Hogoboom & King, Cal. Practice Guide Family Law (Rutter Group 2011) § 1:296.)

The CA acknowledged that its holding "engenders some risk for attorneys who accept FLARPL's, [but pointed out that] trial courts routinely adjudicate the propriety and reasonableness of fee awards under the Family Code and have broad discretion to do so, and attorneys are thus routinely taking the risk that the court will not reimburse all of their fees."  The CA also acknowledged that the doctrines of waiver and equitable estoppel might bar a party from seeking to expunge a FLARPL (see Irmo Valle (1975) 53 Cal.App.3d 837, 840-841) but concluded the doctrines do not have that effect in this case because the issue was not raised in the trial court.

The CA concluded this portion of its discussion by ruling it was unnecessary to join Kramer and Spitzer as parties to the action since they were provided notice of Husband's motion and fully participated in the litigation of the issue.

Kramer's Borson Motion

Wife and Kramer asserted that the trial court should not have substantially reduced the fees awarded to Kramer based on the finding that Husband deserved an offset as a FC § 271 sanction.  The CA disagreed.

"Although the court's order discussed [FC §] 271 and determined that Wife's conduct warranted such sanctions, it is clear from the court's thorough discussion that it based the award on the totality of the circumstances, and did not arbitrarily reduce the award to $39,000 as a sanction."  The CA described the trial court's analysis of the factors listed in FC §§ 2030 and 4320 and said it was the trial court's obligation to limit an award of fees to those that were reasonably necessary.  Thus it was appropriate to take into account over-litigation.  (Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 255.)  "[S]ervices which have no apparent effect other than to prolong and to complicate domestic litigation cannot be deemed ‘reasonably necessary' [citation] ‘to properly litigate the controversy.'"  (Irmo Behrens (1982) 137 Cal.App.3d 562, 576.)  Thus, consideration of Wife's litigation conduct and a reduction for fees attributable to the unreasonable conduct was proper, even without reference to section 271.

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).

Jackson v. Branca -- Unpublished opinion of District 2, Division 4 (Filed January 4, 2013)

A paternity action cannot be filed against a deceased putative father's relatives to force them to undergo blood testing.

Mocienne claimed to be the biological daughter of Michael Jackson and the sister of Diana Ross.  She said that because Jackson is dead and because her mother "is lying and hiding the truth," the court should order Jackson's relatives to submit to genetic testing to establish paternity.

Mocienne's story was that after being kidnapped from Haiti at a young age, she was adopted by members of the "mafia" in the Netherlands.  Because the adoption was terminated at age 13, she has "no mother and no father" and "no family history."

In October 2011, Mocienne and an attorney who specially appeared on behalf of the executors of Jackson's estate appeared on Mocienne's petition.  The trial court dismissed the petition on the ground it had no jurisdiction to hear the matter.  Mocienne appealed.  AFFIRMED

California law does not allow a paternity action to be filed against a deceased putative father's relatives in order to force them to undergo blood testing.  "The repercussions of allowing putative grandparents to be sued in a paternity action and ordered to submit to blood tests extend far beyond the instant case.  If Michael had no living parents, we might well be addressing identical issues involving Michael's brothers and sisters, cousins or other relatives.  Given the troubling implications the decision of who may properly be made a party defendant in a paternity action and subject to mandatory blood testing is one for the Legislature.  Under existing laws, defendants are not proper parties to a paternity action and cannot be ordered to submit to blood tests to aid in a determination of paternity."  (William M. v. Superior Court (1990) 225 Cal.App.3d 447, 453.)

The CA said the reasoning in William M. applies equally to this case.  The matter was properly dismissed for lack of subject matter jurisdiction.

Irmo Handler -- Unpublished opinion of District 2, Division 7 (Filed January 8, 2013)

A DVPO may be renewed without a showing of further abuse if the applicant shows a "reasonable apprehension" that abuse will recur.

A 2001 judgment of dissolution terminated the parties' marriage and put an order in place awarding them joint legal custody of their son. 

In 2007, a Restraining Order After Hearing was issued that Wife sought to renew in 2010 based upon her allegation that Husband continued to harass her.  She said she feared his aggression would escalate if the order expired.  Husband objected to the extension, asserting the relief should be denied because Wife filed a false police report and because he agreed to comply voluntarily with the terms of the order.  Before the hearing, Husband and Wife agreed to continue with joint legal custody of their son.

Following an evidentiary hearing, the trial court extended the restraining order for five years based upon Wife's testimony that she continued to be in fear of Husband, citing his e-mailed threats to sue her, his demands for money and the wish he expressed to kill her before the original ROAH was issued.  The trial court renewed the ROAH but signed a custody order that was inconsistent with the parties' stipulation.

Husband appealed.  AFFIRMED

Once a Domestic Violence Protective Order is issued, it may be renewed without a showing of further abuse (FC § 6345) if the applicant shows a "reasonable apprehension" that future abuse will occur.  (Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1288.)  The trial court should consider whether the parties have "moved on with their lives" and weigh the degree of risk against the significance of the burden the ROAH places on the restrained party.  (Id. at pp. 1291, 1292.)

Here, Husband expressed two concerns about renewing the restraining order: first, the absence of communication between the parties would adversely affect their son; and second, that he would continue to fear the disruption caused by Wife's filing of an allegedly false police report.  Nevertheless, the trial court cited Husband's "disrespectful [and] voluminous" e-mails that were offensive, upsetting, disturbing and "borderline harassing."  The trial court also noted Husband's repeated and annoying attempts to convince Wife to give up the protective order and thus believed Husband had not moved on from his belief the expiring protective order should not have been issued in the first place.

The CA found no error in the trial court's conclusions.  The matter was remanded to the trial court with instructions to correct the mistake in the custody order.

Irmo Farshi -- Unpublished opinion of District 4, Division 1 (Filed January 10, 2013)

Domestic violence protective orders must be based upon a "reasonable apprehension" of future abuse.

Mother and Father have a son and a daughter.  They formerly lived in Iran. 
In February 2011, Mother requested temporary domestic violence protective orders and based upon her declaration temporary orders were issued.  Mother alleged that Father cut the wires to appliances in the house and left trash around the house.  She also said he threatened her in the presence of the children, upsetting them all.  Temporary orders permitted supervised visitation but Father elected not to see the children.  Later that month, Father offered to sell their house to friends, allegedly without Mother's permission and he posted a notice to quit on the front door.

Father claimed that Mother previously committed domestic violence offenses and said she is an agent of the Islamic Republic of Iran, and is under investigation by the FBI, Homeland Security, and the IRS.  Father filed a cross-petition for a restraining order to keep her away from him and his parents, alleging she threatened him with a knife.  Mother denied these allegations.

Following an evidentiary hearing in June 2011, the trial court ruled there was sufficient cause to issue a permanent restraining order against Father that would expire on June 26, 2066 "for computer purposes."  The trial court denied Father's request for a restraining order.  The court's oral statement of decision granted Mother a DVRO for a five-year period, to expire June 26, 2016.

Father appealed.  AFFIRMED

The DVPA permits a court to issue protective restraining orders for the purpose of preventing a recurrence of domestic violence.  (§§ 6220, 6300; S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1264.)  "Abuse" in this domestic violence context may include placing "a person in reasonable apprehension of imminent serious bodily injury to that person or to another," or engaging "in any behavior that has been or could be enjoined pursuant to Section 6320."  (§ 6203 (d).)

Abuse, even if nonviolent, may warrant the issuance or renewal of such a protective order.  (Irmo Nadkarni (2009) 173 Cal.App.4th 1483, 1496; § 6345.)  "[S]ection 6320 broadly provides that 'disturbing the peace of the other party' constitutes abuse . . . ."  (Nadkarni at p. 1497.)  "[T]he plain meaning of the phrase 'disturbing the peace of the other party' in section 6320 may be properly understood as conduct that destroys the mental or emotional calm of the other party."  (Id. at pp. 1497-1498.)  To obtain such an order, a protected party has the burden to show by a preponderance of the evidence that a reasonable person would have a " 'reasonable apprehension' " of future abuse.  (Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1290.)

The CA concluded Father failed to present any facts supporting "his serious allegations of corruption or other misfeasance in the family court proceedings.  Instead, the reporter's transcript shows that the judge conscientiously gave him a chance to be heard and to explain his position, but he could not or did not offer any factual support for his claims.  The record fully supports Mother's request for injunctive relief arising from the dysfunctional interactions between Father, the children, and herself, up to and including the time of hearing."

As to the duration of the DVRO, the CA modified it to confirm its expiration date is June 26, 2016.

Osinoff v. Hunter -- Unpublished opinion of District 2, Division 6 (Filed January 10, 2013)

  1. An unrecordable interspousal transfer deed to husband and wife creates a presumption the property is a community asset.
  2. Husband's contracting business should have been valued on the date of separation.

Husband and Wife married in 2006.  In 2007, Wife contributed about $77,000 of her separate property funds toward the acquisition of a residence.  The residence was conveyed to Husband as "a married man as his sole and separate property" and he alone executed the deed of trust securing a mortgage.  Wife ceded any interest she might have in the residence to Husband by executing an ISTD.

Three months after escrow closed, Husband executed an ISTD that added Wife to the title.  They also executed a Declaration of Homestead exemption that referred to themselves as "joint owners."  The County Recorder refused, however, to record the documents because they did not include their middle names in the conveyance.  Thereafter Husband and Wife never got around to correcting the conveyance or the declaration of homestead.

At a trial of reserved issues, Husband and Wife litigated the characterization of the residence and the value of Husband's business.  Prior to trial, Wife asked the court for an order that Husband's business be valued on the date of separation (2009) rather than the date of trial (2011).  The trial court denied her motion.

The parties' positions regarding the characterization of residence as separate or community changed over time.  Initially, Husband claimed the residence was his separate property and Wife contended it was a community asset.  But by the time of trial, they each switched their position because they agreed the value of Husband's business would be determined by the court's characterization of the residence.  If the residence were Husband's separate property, the business would be valued at $320,500; if it were determined to be community property, the business would be valued at $104,500.  This meant that Husband owed Wife more if the residence were found to be his separate property.

At the end of the first stage of the trial, the trial court ruled the residence was Husband's separate property because "the deeds, the loans, Declarations of Disclosure of each party to a lesser extent, the statements by the parties in their restraining order actions, and the post-separation conduct of [Husband] in transferring the property to his own separate trust" meant the property was his separate property asset as was the debt attached to it.  Based on that finding, the court ordered Husband to pay Wife $236,250.

Husband appealed the characterization of the family residence as his separate property.  Wife appealed the denial of her request that Husband's business be valued on the date of separation.  REVERSED

Characterization of the Residence

The baseline presumption that property acquired during the marriage is community property (§ 760) yields to the presumption that the form of title determines the character of the property.  (Evid. Code, § 662; Irmo Brooks & Robinson (2008) 169 Cal.App.4th 176, 186, 189.)  Here, the parties initially agreed that the residence acquired during their marriage would be conveyed to Husband "as his sole and separate property."  Later, Husband executed a conveyance that vests title in both names.

The CA said the conveyance by Husband to him and Wife creates a presumption that, in the absence of clear and convincing evidence to the contrary, that the residence is community property - a finding Wife hoped to avoid because, by their agreement, it meant a lower value would be assigned to Husband's business.

Seeking to hang onto her victory in the trial court, Wife argued that Brooks & Robinson holds that the "form-of-title presumption" can only be invoked once per marriage as to an item of property.  The CA disagreed.  "Brooks does not so hold.  Brooks addressed the validity of a transfer of property held as a separate property of one spouse to a third party; it did not involve successive changes in title between spouses."

The CA also rejected Wife's argument that the inability of the parties to record the conveyance rendered it void, thus leaving the residence in Husband's name only and therefore his separate property.  "[R]ecording is not necessary to make a transfer effective between the signatories to the transfer -- in this case, Husband and Wife.  (Civ. Code, § 1217; Evid. Code, § 622.) 

Wife also unsuccessfully argued the second ISTD was inadequate to transmute the property from Husband's separate property to community property. (§ 852.)   "[A] duly executed grant deed has long been sufficient to meet the statutory requirement that an interspousal transfer expressly state that the characterization or ownership of the property is being changed.  (Estate of Bibb (2001) 87 Cal.App.4th 461, 463, 468-469; Irmo Lund (2009) 174 Cal.App.4th 40, 50.)  … [T]he language "Husband and Wife" sufficiently conveys the spouses' intention to convert the residence into community property, at least in the absence of any further specification of the form of title (such as a joint tenancy or tenancy in common)."

The CA added that the second interspousal deed "at a minimum, rebuts the presumption arising from the initial acquisition of the residence in Husband's name alone.  The presumption arising from the form of title may be rebutted by clear and convincing evidence of an agreement of the parties that "the title reflected in the [initial] deed is not what the parties intended."  (Brooks at p. 189.)  The second deed constitutes such evidence because it indicates a mutual intention to convert the residence back to joint ownership."

Finally, Wife argued the trial court's ruling should not be disturbed because the second transfer is trumped by the presumption of undue influence that arises from the unfair advantage Husband obtained by the second ISTD.  (§ 721; Irmo Haines (1995) 33 Cal.App.4th 277, 293, 301; Irmo Matthews (2005) 133 Cal.App.4th 624, 629.)  Here, the CA said Husband -- not Wife -- was the spouse disadvantaged by the second ISTD that ceded his separate property interest in the residence to the community.

Valuation Date for Husband's Business

What Wife lost in the CA's characterization of the residence may be recovered in the CA's ruling that Husband's business should have been valued on the date of separation instead of the date of trial.

Although as a general rule the date of trial is used as the valuation date of property (§ 2552 (a)), the trial court may select any other date after the spouses' separation if doing so is necessary to accomplish an equitable division of the community estate. 

As to Husband's contracting business, the CA explained, "We have uniformly held there is ‘good cause' to use the date of separation itself when the asset to be valued is a professional practice or small personal service business that relies on the skill and reputation of the spouse who operates" it.  (E.g., Irmo Geraci (2006) 144 Cal.App.4th 1278, 1291; Duncan, supra, 90 Cal.App.4th at pp. 625-626.)  Because the value of a small personal service business is largely the product of the owning spouse's personal efforts, changes in the value of such business should accrue to the benefit (or detriment) of the owning spouse.  Thus, it was error to deny Wife's request to value the asset as of the date of separation.

Husband argued his general contracting is not a personal service business but the CA disagreed, citing Stevenson at pp. 254-255 and Bing v. Bing (1959) 168 Cal.App.2d 348, 350.  Husband attributed the post-separation losses in the business to the downturn in the economy rather than any intentional conduct by him to devalue the business.  The CA rejected his contention nothing "this rule applies even when the business's value is not tied ‘exclusively' to the owner's personal efforts (Duncan at p. 627), and even when there is no evidence of intentional efforts to devalue the business (Stevenson at pp. 254-255)."

The matter was remanded to the trial court for a hearing to determine the value of Husband's business as of the date the parties separated.

Irmo Baron -- Unpublished opinion of District 2, Division 6 (Filed January 10, 2013)

In determining the amount a supporting party has available to pay support, do not deduct his or her monthly equalization payments.

Husband and Wife married in 1979 and separated in 2007.  Shortly after their marriage, they founded a nursery and several other business entities.  Wife worked for the family business for nearly 30 years but was fired in 2010.  During that period, the nursery contributed to Husband's Social Security account but not to Wife's.

The parties enjoyed an upper middle class lifestyle with the nursery paying virtually all of their personal expenses.  In 2010, Husband agreed to buy out Wife's share of the community businesses and real property.  Their MSA requires him to make installment payments to Wife over a period of 15 years in the total amount of $1 million.

At the time of the support trial, Wife was 62 years old and unemployed with physical complaints consistent with her age.  Husband was 58 and nothing inhibited his ability to work full time.

The trial court declined the parties' requests to impute income to the other party.  As to Husband's earnings, the trial court noted that he has struggled to run the nursery during an economic downturn and found he was entitled to try to bring the business back to its prior level without the additional burden of an imputed income reflecting earnings in better times.  As for Wife, the trial court noted she was 62, had been fired from her only employment of the last 30 years and concluded it was unrealistic to believe that she will find employment any time soon.

The parties offered expert testimony about the income Husband had available for support.  Wife's expert said Husband had $29,060 per month, all non-taxable, available for support.  Husband's expert said it was only $3,873 per month, all taxable.  After tempering the exuberant advocacy of the alleged experts, the trial court found Husband's income averaged $13,450 per month, of which $12,282.00 is non-taxable.

The trial court weighed the statutory factors for spousal support (§ 4320) and ordered Husband to pay Wife $5,500 per month until the death of either party, Wife's remarriage or further order of the court.  Citing Wife's age and lack of Social Security benefits, the trial court granted Wife's request for security for spousal support ordering Husband to provide a $500,000 term life insurance policy for a period of 10 years, and a $200,000 policy for the following five years.

Husband appealed.  AFFIRMED

Spousal Support

In assessing the need for spousal support, the trial court must weigh the factors set forth in section 4320, including each party's earning capacity, the supporting party's ability to pay spousal support, the parties' needs based on the marital standard of living, "[t]he obligations and assets, including the separate property, of each party," the supported party's ability to work, the age and health of the parties, the tax consequences of the award, the balance of the hardships to each party, and "[a]ny other factors the court determines are just and equitable.  [Citation.]"  (Irmo Lynn (2002) 101 Cal.App.4th 120, 131-132.)

Husband's plea was that the trial court support order was an abuse of its discretion because it did not leave him sufficient income for his own support.  Husband argued that after reducing the $13,450 monthly income he as available for support by the $11,478 required to pay spousal support and property division payments, the balance of $1,971 is insufficient to meet his monthly cash needs of $2,876.  The CA rejected the argument.

"Husband's analysis is based on the incorrect assumption that his property division obligation affects his ability to pay spousal support.  In Irmo Martin (1991) 229 Cal.App.3d 1196, 1198, we held that a spouse may not ‘finance a "buy-out" of community property and then successfully claim inability to pay spousal support.'  (Id. at pp. 1198, 1201.)  … [A] spouse should not be penalized for agreeing to a cash buy-out of an interest in community assets.  (Id. at p. 1201; see Irmo West (2007) 152 Cal.App.4th 240, 250-251; Irmo Rabkin (1986) 179 Cal.App.3d 1071, 1081 ["It makes no more sense to reduce wife's spousal support because she received her rightful share of the community property than it would to increase wife's spousal support because husband received his rightful share of the community property"].)

The CA said, "Here, Wife allowed Husband to retain virtually all the community assets, including the income producing assets, in exchange for a cash buy-out payable over 15 years. … Given that Wife has no employment prospects or Social Security income, the trial court properly considered the installments as ‘Wife's fair division of the community.'  To do otherwise would penalize Wife for agreeing to the cash buy-out.  ¶ Because the monthly installment payments are attributable to Wife's share of the community assets, Husband may not use them to reduce his income available for support.  (Martin at pp. 1198-1199.)"

The CA also rejected Husband's contention the spousal support award is unfair because most of his monthly "cash flow" was not actually cash but was imputed "perquisite income" derived from the personal expenses paid by his nursery business.  The CA said, "Section 4320 (c) requires that the trial court consider ‘[t]he ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living.'  The statute does not exclude non-taxable income."

Security for Spousal Support

The CA rejected Husband's argument that it was an abuse of discretion to require him to purchase a $500,000 term life insurance policy.  He contended it was unnecessary because upon his death Wife would receive the entire property division settlement.  He also said there was no evidence that life insurance is available or affordable.

FC § 4360 (a) permits a trial court to include in the spousal support award an amount sufficient to purchase an annuity for the supported spouse or to maintain insurance for the benefit of the supported spouse on the life of the obligor spouse.  (See Irmo Ziegler (1989) 207 Cal.App.3d 788, 793.)  Here, "the parties were married for almost 30 years and Wife is over 60, with no employment prospects or retirement income.  If Husband dies, she will have virtually nothing available for support other than her remaining share of the community assets.  The trial court acted within its discretion in ordering security for the support payments."

Beth C. v. Marcia B. -- Unpublished opinion of District 2, Division 7 (Filed January 14, 2013

Failing to complete an adoption does not rebut the presumption of FC § 7611(d).

In 2002, Beth C. and Marcia B. entered into a committed same-sex relationship.  In 2007, they decided to adopt a Russian child.  Once the adoption process began, Marcia B. was named as the adoptive parent because Beth C. was worried about a DUI arrest on her records and because Russia did not permit adoption by same sex couples.  Although Beth C. began the process to adopt Ian B. the proceedings were never completed.

Beth C. cared for the child while Marcia B. worked full time.  She introduced him as her son and the child refers to her as "mommy."  Beth C. took him to his various doctor and physical therapy appointments and assumed the role of a "stay-at-home-mom."

In 2008, the couple ended their relationship.  Beth C. and the child then moved to California although Marcia B. cared for the child several weeks during the year.  In February 2011, Marcia B. picked up the child from Beth C.'s residence but refused to return him.

Beth C. filed a petition to establish her legal parentage.  The trial court found that Beth C. is a presumed parent and entered a judgment of parentage in favor of Beth C.

Marcia B. appealed.  AFFIRMED

Presumed Parentage Status under Family Code Section 7611

Section 7611 provides several circumstances in which "[a] man is presumed to be the natural father of a child," including: if "[h]e receives the child into his home and openly holds out the child as his natural child" (FC § 7611 (d)).  (See In re Spencer W. (1996) 48 Cal.App.4th 1647, 1653; In re Salvador M. (2003) 111 Cal.App.4th 1353, 1357.)  This presumption must be applied in a gender-neutral manner and can be rebutted only by clear and convincing evidence.  (§ 7612.)

A person seeking the benefit of the presumption does not have to show that he or she is in a registered domestic partnership with the legal parent.  (Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 114, 125; E.C. v. J.V. (2012) 202 Cal.App.4th 1076, 1085.)  "Nevertheless, a presumed parent is not just a casual friend of the other parent, or even a long-term boyfriend or girlfriend, but someone who has entered into a familial relationship with the child: someone who has demonstrated an abiding commitment to the child and the child's well-being, regardless of his or her relationship with the child's other parent."  (E.C. at p. 1085; see also In re Sabrina H. (1990) 217 Cal.App.3d 702, 708; In re T.R. (2005) 132 Cal.App.4th 1202, 1211-1212.)

Substantial Evidence Supports the Trial Court's Finding

Beth C. and Marcia B. were in a committed relationship, decided to adopt a child, and both women were to be this child's parents.  From the time the child was adopted until mid-2009, he lived with both women as his mothers.  Marcia B. concedes the women were "co-parents" while they were together and that she recognized that Beth C. treated and introduced the child as her son.  Until February 2011, he lived with Beth C. in her parents' home. Marcia B. visited with their son during school breaks.  Beth C. enrolled the child in school as her son.

The CA rejected Marcia B.'s argument that Beth C. did not receive their son into her home because her parents owned the property.  The CA said "courts have never applied the ‘received child into her home' requirement of 7611 (d) to require that a presumed parent own the home in which they dwell.  (See Charisma R. v. Kristina S. (2009) 175 Cal.App.4th 361, 374; S.Y. v. S.B., supra, 201 Cal.App.4th at p. 1032.)

Marcia B.'s "Policy" Arguments

Marcia B. argued Beth C.'s decision to not form a legal relationship with the child disqualified her from becoming his parent because it evidenced her intention not to assume legal and financial responsibility for the child.  Marcia B. suggested that Beth C. did not complete the adoption process, so that she could walk away if she wished to do so.  The CA dismissed the argument pointing out that Marcia B. could have relied upon FC § 7611(d) if she had sought financial or legal accountability from Beth C.

The CA also rejected Marcia B.'s other arguments that focused on the qualities of her relationship with Beth C.  The CA noted FC § 7611 (d) "does not consider the relationship between the parents of a child and courts have been explicit in holding that the relationship between the parents of a child is immaterial to a presumptive parentage determination.  (E.C. at p. 1088.)"

Finally, the CA rejected Marcia B.'s argument is that the court's application of section 7611 (d) allows for a person to circumvent formal adoption proceedings by showing that he or she is the presumed parent instead of formally adopting the child.  "As the Fourth Appellate District has recently recognized in L.M. v. M.G. (2012) 208 Cal.App.4th 133, 147, ‘Adoption and an order determining parentage under the UPA are alternative methods for someone to establish parental status.'"

Irmo Bailey & Nation -- Unpublished opinion of District 2, Division 8 (Filed January 14, 2013)

Parents are not obligated to pay the costs of their children's divorces.  A finding that a former spouse has the ability to pay fees cannot be based upon evidence her fees were being paid by her mother.

Wife and Husband were divorced in 2007.  The divorce decree requires Husband to pay Wife $3,500 monthly in spousal and child support. In July 2009, Husband stopped making payments and Wife asserts he is in arrears over $90,000.  Husband's 2011 I&E states he has no income and his expenses are $2,360 a month.  Husband explained that his work as a computer software programmer suffered as a result of the economic crisis.  He lives with his long-term partner, pays no rent, and drives his partner's vehicle.

Wife too claimed she had no job.  Her 2011 I&E shows no income and monthly expenses of $6,073, all paid by other persons.  Wife states she owes her mother $230,000 for legal expenses and $173,098 for living expenses.

In June 2011, Husband sought a new child support order and asked for an award of attorney fees to retain counsel.  Husband claimed fees were necessary for him to discover Wife's financial status.  Following a hearing, the trial court ordered Wife to pay Husband's attorney fees "in the initial sum of $10,000."  Wife appealed.  REVERSED

FC § 2030 (a) allows the court to ensure that each party has access to legal representation by ordering one party to pay whatever amount is reasonably necessary for attorney's fees and costs.  In doing so, the court must make findings on, among other things, whether "one party is able to pay for legal representation of both parties."  The trial court "must consider the respective incomes and needs of the parties, including all evidence concerning income, assets, and abilities, in exercising its discretion to award attorney's fees."  (Irmo Hobdy (2004) 123 Cal.App.4th 360, 371.)

The CA agreed that the fact Wife was continuously represented at her mother's expense shows "there is a disparity in access to funds to retain counsel."  Nevertheless, "FC § 2030 requires not only a disparity in access to funds, but also evidence that one party is able to pay for legal representation of both parties."

Here, the evidence demonstrated Wife was unable to pay her own attorney fees much less Husband's.  Wife had no income and the CA said there was no evidence she received a recurring monetary benefit that could be regarded as income as in Irmo Alter (2009) 171 Cal.App.4th 718, 737. 

The undisputed evidence that Wife's mother funded her attorneys does not support the trial court's order awarding Husband attorney fees.  The CA said Wife's mother is not a party to this action and cannot be forced to pay for her ex-son-in-law's attorney fees.  Generally, "[p]arents are not obligated to pay the costs of their children's divorces."  (Irmo Schulze (1997) 60 Cal.App.4th 519, 532.)

Irmo Kale -- Unpublished opinion of District 3 (Filed January 15, 2013)

An agreement awarding Wife one-half of Husband's "PERS benefits" evidenced their intention to divide these benefits even though  they were separate property disability benefits.

Husband and Wife married in 1984.  In 1985, Husband began working as a police officer for the City of Stockton.  He was injured on the job and in 1990 began collecting $1,700 per month as a "permanent disability" benefit.  In 2003, the parties separated.

The judgment of dissolution incorporates the terms of a mediated MSA the parties negotiated without the benefit of counsel.  Among other things, the MSA and judgment "transfers and assigns to Wife … one half the Public Employees Retirement System Benefits earned by Husband through his employment."  She was also awarded spousal support.

Husband complied with his obligation to pay Wife one-half of his monthly benefit payments until 2011.  He stopped the payments after meeting with an attorney who told him they were a separate property disability benefit, not a community property retirement benefit.

Wife resisted the relief sought.  She moved to enforce the judgment and to collect Husband's arrears.  Wife argued she was awarded half of the benefits without regard to their character.

Following an evidentiary hearing, the trial court agreed the benefits were disability benefits and thus Husband's separate property but ruled "parties are free to dispose of their property by agreement in order to resolve their case in any manner they see fit."  The court concluded Husband's payments were pursuant to a judgment Husband participated in designing, were part of an overall settlement of community and separate property rights and ruled Wife was entitled to have them continue undisturbed.

Husband appealed.  AFFIRMED

The terms of a judgment that recites the agreement of the parties must be interpreted as any other written agreement.  (Irmo Iberti (1997) 55 Cal.App.4th 1434, 1439; Irmo Trearse (1987) 195 Cal.App.3d 1189, 1194-1195.)  It "must be interpreted so as to give effect to the mutual intention of the parties as it existed at the time of contracting …."  (Civ. Code, § 1636.)  Unless the agreement is ambiguous, "the intention of the parties is to be ascertained from the writing alone, if possible . . . ."  (Civ. Code, § 1639.)

"Parol or extrinsic evidence is admissible to resolve an ambiguity.  In such cases, the court engages in a two-step process:  ‘First, the court provisionally receives (without actually admitting) all credible evidence concerning the parties' intentions to determine "ambiguity," i.e., whether the language is "reasonably susceptible" to the interpretation urged by a party.  If in light of the extrinsic evidence the court decides the language is "reasonably susceptible" to the interpretation urged, the extrinsic evidence is then admitted to aid in the second step--interpreting the contract.'"  (WYDA Associates v. Merner (1996) 42 Cal.App.4th 1702, 1710.)

Here, the judgment characterized "the PERS benefits" earned by Husband as community property and assigned one half of the payments to Wife.  At the time the MSA was negotiated, the only benefits Husband was receiving were disability benefits -- not retirement benefits.

The CA presumed that the trial court properly resolved the ambiguity in the MSA by provisionally considering the extrinsic evidence offered by Wife and then properly determining the disputed language was reasonably susceptible to her proffered interpretation before admitting the evidence to interpret the judgment.  Thus, when the parties (neither of whom is a lawyer) agreed Wife would receive one-half of the "retirement systems benefits" Husband earned while working for the City of Stockton Police Department, they intended to divide the only benefits Husband earned while working for the City of Stockton Police Department - his disability benefits.  (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.)

Kita v. Superior Court -- Unpublished opinion of District 2, Division 7 (Filed January 16, 2013)

  1. Sub-service of a Japanese citizen residing in Japan does not comply with the Hague Service Convention. 
  2. Service by ordinary mail does not comply with CCP § 415.40.

Husband and Wife married in Japan in 2003.  They have two children who were born in Japan.  All are citizens of Japan.

In 2008, Husband's employer transferred him to an assignment in Torrance, California. In 2010, Husband and Wife separated and she moved to another residence with their son.  Husband returned to Japan with their daughter.  Husband's E-2 work visa was cancelled.

Wife filed a petition to dissolve their marriage in California the day after Husband left for Japan.  Husband initiated a dissolution case in a Japanese family court a few days after he arrived back in Japan.  Wife was personally served with Husband's petition in Torrance on January 11, 2011.

On March 1, 2011, by special appearance, Husband filed a motion to quash service of summons and to stay or dismiss the instant action in California.  He claimed that the summons should be quashed because it was not properly served.  He also requested a stay or dismissal of the California action on the grounds of forum non-conveniens.  Husband argued that the Japanese court was a suitable forum, all parties were Japanese citizens and Wife had no legal status in the United States, given that Husband's E-2 visa was cancelled.

On March 17, Wife filed three proofs of service.  One purported to show personal "sub-service" on Husband stating a resident of Rancho Palos Verdes personally delivered the summons, petition and other documents to a person at the address in Japan that Wife believed was Husband's workplace.  A second proof of service showed copies of the documents were also mailed to this address.  The third proof of service form showed the documents were mailed to an address Wife believed might be Husband's residence in Japan by ordinary mail without a certified return-receipt request or by registered mail.

Following a hearing and supplemental briefing, the trial court noted Husband's acknowledgment that someone dropped off documents addressed to him at his work but that he believed that this was not proper service according to the Hague Service Convention.  The trial court ruled that the Hague Service Convention authorizes service by "postal channels" and ruled that service by mail was valid since Husband did not dispute receiving the documents.

Husband petitioned for writ of mandate.  WRIT ISSUED

Insufficiency of Actual Notice as Valid Service

First, the CA said the trial court erred by concluding service was sufficient simply because Husband had actual notice of Wife's dissolution action.  "‘Failure to comply with the Hague Service Convention procedures voids the service even though it was made in compliance with California law.  This is true even in cases where the defendant had actual notice of the lawsuit.' (Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 1136.)  ‘California is a jurisdiction where the original service of process, which confers jurisdiction, must conform to statutory requirements or all that follows is void. [¶] The fact that the person served ‘got the word' is irrelevant."  (Honda Motor Co. v. Superior Court, supra, 10 Cal.App.4th at pp. 1048-1049.)

Applicability of the Hague Service Convention

CCP § 413.10 (c) provides that, when the person is to be served outside the United States, a summons must be served as provided by the Code of Civil Procedure, as directed by the trial court, "or, if the court before or after service finds that the service is reasonably calculated to give actual notice, as prescribed by the law of the place where the person is served or as directed by the foreign authority in response to a letter rogatory.

The Hague Service Convention provides a simpler way to serve process abroad, "to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad. … ¶ [T] he Convention pre-empts inconsistent methods of service prescribed by state law."  (Volkswagenwerk Aktiengesellschaft v. Schlunk (1988) 486 U.S. 694, 699.)  Thus the Hague Service Convention and CCP § 413.10(c) govern service on Husband to the extent the CCP is consistent with the Convention.

The CA said the main channel for service of process initiated by the Hague Service Convention is through a Central Authority established by each signatory country.  The Hague Service Convention also permits service by "postal channels" directly to persons abroad provided the rights of the addressee are respected.  Here, Wife did not attempt service through Japan's Central Authority but instead chose to serve the documents by ordinary mail addressed to Husband at two addresses in Japan; one she believed was for his workplace and the other she thought might be for his residence.

The CA acknowledged a split of authority in California about whether the Convention permits service by mail in Japan.  Here, the CA determined that "whether or not Article 10(a) permits service by mail, Wife's attempted service by ordinary mail is invalid" because she failed to comply with California law governing the method of mailing and proof of actual receipt by a defendant.

Citing Brockmeyer v. May (9th Cir. 2004) 383 F.3d 798, 803-804 the CA said the Ninth Circuit explained ‘Article 10(a) does not itself affirmatively authorize international mail service.  It merely provides that the Convention "shall not interfere with" the "freedom" to use postal channels if the ‘State of destination' does not object to their use. . . .  [¶]  . . . Any affirmative authorization of service by international mail, and any requirements as to how that service is to be accomplished, must come from the law of the forum in which the suit is filed."

CCP § 415.20 authorizes substituted service by personal delivery to a competent person at the defendant's residence or workplace, followed by sending the service documents by first class mail addressed to defendant at the residence or workplace where the service documents were delivered.  But since nothing in Article 10(a) authorizes substituted service, this method was invalid.

CCP § 415.30 authorizes service by mail if the mailing includes a notice and acknowledgment of receipt to be signed by the defendant and a return envelope, postage prepaid, addressed to the sender.  That was not a method Wife employed in this case.   

CCP § 415.40 provides that "[a] summons may be served on a person outside this state . . . by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt."  Here, Wife's proof of service showed a mailing to an address she thought was his workplace and another mailing to an address she thought might be his residence.  But since neither of the mailings required a return receipt, Wife's service attempt did not comply with the statute.  (Bolkiah v. Superior Court  (1999) 74 Cal.App.4th 984, 1001.)

The trial court's order denying Husband's motion to quash was vacated and it was instructed to issue an order granting the motion.

Irmo Abbate & Camarata -- Unpublished opinion of District 4, Division 2 (Filed January 17, 2013)

  1. A domestic violence restraining order is properly denied in the absence of evidence of current abuse or the threat of abuse.
  2. Liability for child support by estoppel only arises if a representation of parentage was of such long duration that it truly establishes the paternal relationship of the putative father and child.

Ms. Camarata's son was born in 2002.  The parental rights of the boy's natural father were terminated in 2006.  Ms. Camarata and Mr. Abbate met in the summer of 2004 and were married in 2005 when the child was three and a half.  Mr. Abbate agreed to assume the parental role as the boy's father and an adoption petition was filed.

In 2007, Ms. Camarata took the boy to a hospital as a result of his physical symptoms and complaints that he had been molested.  He began therapy that continued until 2010.  Believing that Mr. Abbate molested the child, Ms. Camarata filed a dissolution petition that named Mr. Abbate as a de facto parent.  She asked the court to order Mr. Abbate to pay child support.  The marriage was dissolved in 2010.

Ms. Camarata also filed a civil action against Mr. Abbate for sexual battery but after a trial, the jury found in favor of Mr. Abbate.  The alleged molestation was reported to law enforcement but criminal proceedings were never filed against Mr. Abbate.

The Request for Restraining Orders

In August 2007, at Ms. Camarata's request a temporary restraining order was issued and a Restraining Order After Hearing was issued.  As a result of the order, Mr. Abbate did not see the child after August 2, 2007.

In June 2010, Ms. Camarata's request for another restraining order was heard.  The trial court asked Ms. Camarata stating that he would treat the answers as offers of proof.  The court read the declaration of the child's therapist to determine if there was a risk of future harm if the restraining order was not issued.  The trial court found the child had no current relationship with Mr. Abbate and was not at risk from Mr. Abbate because he had no current access to the child.  Ms. Camarata's request for restraining orders was denied.

Ms. Camarata appealed.  AFFIRMED

The CA disagreed with the trial court's statement that the restraining orders could not be issued protecting the child because the DVPA required a "current relationship" between him and Mr. Abbate.  "Contrary to the statement of the trial court, section 6211 does apply to former cohabitants and does not contain a requirement that there be a current relationship with the person to be restrained." 

Nevertheless, the CA said the trial court properly refused to issue the restraining order because "the undisputed facts establish that, because of the temporary restraining order, Mr. Abbate had not seen the child in three years and had made no attempt to do so.  No current abuse or current threat of domestic violence was shown.  (§§ 6203 (b), 6320.)   The CA acknowledged, "past violence can be the basis for a restraining order.  (§§ 6300, 6345 (a).)  However, under the circumstances here, past violence cannot be shown because the civil jury determined that Mr. Abbate did not commit sexual battery upon the boy.  … Ms. Camarata [is collaterally estopped] from claiming that there was sexual battery in the past. (Sandoval v. Superior Court (1983) 140 Cal.App.3d 932, 936-937.)"

Parentage by Estoppel

Following dissolution of the marriage, Ms. Camarata filed a motion for a determination that Mr. Abbate was a parent by estoppel.  Following an evidentiary hearing, the trial court denied the motion.

Ms. Camarata appealed.  AFFIRMED

The CA examined Irmo Pedregon (2003) 107 Cal.App.4th 1284 where the husband treated the child as his son for about ten years who was unaware of the fact that the husband was not his natural father.  Citing Irmo Freeman (1996) 45 Cal.App.4th 1437, 1447, the CA said "a husband's obligation to support his wife's children may arise quite apart from the presumption set forth in sections 7540 and 7541 and apart from whether he is the biological father of the children.  … [T]he conduct of a husband with no biological ties to a child may nonetheless estop the husband from avoiding parental responsibilities even after the husband's marriage to the child's mother is dissolved.'"  (Pedregon at p. 1288.)

The found no support for Ms. Camarata in Clevenger v. Clevenger (1961) 189 Cal.App.2d 658.  There, the husband acted as a father to the child in every way but there was no evidence he represented to the boy that he was his father or intend that any representation be accepted and acted upon by the child, or that the child relied upon the representation and treated the husband as his father and gave his love and affection to him, that the child was ignorant of the true facts.  Had that been the case, the panel said "[W]e would have the foundation of the elements of estoppel."  (Clevenger at p. 671.)

Clevenger also emphasized that liability for support would only arise by estoppel "if the representation was of such long continuance that it frustrates the realistic opportunity of discovering the natural father and truly establishes the paternal relationship of the putative father and the child."

Here, there was ample evidence that Mr. Abbate held himself out to be the child's father and that he acted as his father from the fall of 2004 until the parties separated on June 15, 2007, a period of two and a half years.  But the child was eight years old at the time of the hearing and Mr. Abbate had not had a relationship with the boy for two and a half years.  There was no evidence of the child's belief about parentage and in any event Ms. Camarata kept him away from her son through her requests for restraining orders and civil proceedings.

The CA also distinguished Irmo Johnson (1979) 88 Cal.App.3d 848, Irmo Valle (1975) 53 Cal.App.3d 837.

Irmo Freakins -- Unpublished opinion of District 1, Division 1 (Filed January 22, 2013)

Husband's quitclaim deed to wife while in prison was freely and voluntarily made, with a full knowledge of all the facts and with a complete understanding of the transfer.  The presumption of undue influence was rebutted.

Before the parties married in 1989, Husband used $18,445 of his separate property to make the down payment on a condominium.  After they married, Husband deeded the home to himself and Wife jointly.  In 1993, Husband and Wife jointly purchased another home and lived in it until 2003 when Husband was arrested for molesting Wife's son.

About three weeks after his arrest, Husband executed a power of attorney giving Wife authority to handle his finances while he was incarcerated.  They also discussed putting title to their home in Wife's name alone. 

While he was in jail, Wife wrote Husband a letter that addressed the real property saying "If you want to deed the house to me, let me know."  As to the other assets, Wife said, "Re the investments and whose name they are in -- When you are released everything will be shared -- stocks are in my name for convenience at this point.  Putnam, your 401K, and the Union Bank Acct (do you have one) are as they were.  I'll take care of Schwab as we discussed when the paperwork goes through."  Wife had a deed prepared that Husband signed about a week before he was sentenced.  It was recorded.

Wife testified she did not promise to put Husband's name back on the title and said that until the dissolution action was filed, he never asked her to do so.  Nevertheless, Husband said he believed he "still had 50% of the equity of the house" "because of Wife's commitment to the marriage."  Husband testified he "was under extreme duress" at the time he signed the deed and believed Wife agreed to share the assets equally when he was released based on a letter she wrote him while incarcerated.
Husband was sentenced to 32 years in prison.  The trial court determined the residence was Wife's separate property.  Husband appealed.  AFFIRMED

FC § 850 (a) provides married persons may transmute community property to separate property of either spouse.  Such transactions "are subject to the general rules governing fiduciary relationships [and impose] a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other.  [W]hen an interspousal transaction advantages one spouse, ... a presumption [arises] that the transaction was the result of undue influence.  [The presumption] can be overcome ... by a preponderance of the evidence."  (Irmo Starr (2010) 189 Cal.App.4th 277, 281; Irmo Haines (1995) 33 Cal.App.4th 277, 297.)

Thus Wife, as the advantaged spouse, had the burden to rebut the presumption by establishing "the quitclaim deed was freely and voluntarily made, with a full knowledge of all the facts and with a complete understanding of the transfer."  (Irmo Mathews (2003) 133 Cal.App.4th 624, 631.)  The CA said she did so.

Husband, not Wife, proposed the transfer after consultation with his attorney and told her to have a deed prepared.  He admitted Wife "did not say she would put him back on" the title after he was released, and there was nothing on the deed indicating "ownership comes back to me at any time."

The CA also rejected Husband's claim the court erred by not applying the constructive fraud doctrine.  He argued Wife's letter to him when he was in jail contained an implied promise to reconvey and argued that in any event constructive fraud can be found even in the absence of an express promise to reconvey the property.

"[A]s a general principle constructive fraud comprises any act, omission or concealment involving a breach of legal or equitable duty, trust or confidence which results in damage to another even though the conduct is not otherwise fraudulent." (Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399, 415.)

Husband's reliance on Brison v. Brison (1888) (Brison I) 75 Cal. 525 and Brison v. Brison (1891) 90 Cal. 323 (Brison II) was misplaced because in both cases the wife's constructive fraud was based upon her express promise to reconvey.  Husband's reliance on Jones v. Jones (1903) 140 Cal. 587 was rejected because there, the wife conveyed real property from which she wanted to evict a tenant to her husband on the advice of an attorney who told her that she could not maintain the action in her own name.  The court held "the husband, who, by accepting the deed upon the statement made in his presence of the purposes for which he was to hold the land, became a party to the transaction, and by implication promised to fulfill the purpose of the trust."  (Id. at p. 591.)

Husband asserted the letter Wife wrote him in jail constituted an implied promise to reconvey the residence, arguing the couple's home was one of the "investments" to which Wife referred because it had increased in value.  The CA dismissed the argument, noting, "The letter distinguished between the home, which would be deeded to her, and the investments, which were specifically listed and would be ‘shared' after Husband's release.  The letter does not evidence an agreement, express or implied, that Wife would reconvey the home to Husband at any time."

Husband's FC § 2640 Claim for Reimbursement

Husband asserted the trial court erred in not ordering reimbursement of his separate property down payment on the residence he purchased before the parties married.  But reimbursement is only available to a party to the extent it is traced to a separate property source.  (FC § 2640 (b).)

Here, the couple lived in the property for about four years, paying the mortgage with community property funds.  When it was sold in 2003, the proceeds were placed in their E*Trade account and commingled with other community funds.  It was undisputed that the account "fluctuated" in value. 

There was no evidence of how much, if any, of the E*Trade account was attributable to separate property of Husband.  Thus it was not error to divide the account equally.

Spousal Support

Husband argued the trial court erred in denying him spousal support, maintaining CC § 4325 is inapplicable because Wife was not the victim of his domestic violence crimes.  The CA disagreed.  The circumstances surrounding his crimes was relevant to his claim for spousal support.

Moreover, other FC § 4320 factors warranted denial of spousal support since Husband had other significant financial resources, his living expenses were paid by the state, his marketable skills and earning capacity were impaired only because he engaged in crimes resulting in his incarceration.  His claimed expenses in prison were only $430 per month.


Irmo Titus -- Unpublished opinion of District 2, Division 7 (Filed January 8, 2013)

Summary of principles applicable to motions for reconsideration.

Husband appealed from a judgment on reserved issues.  He argued the trial court erred by not considering new evidence he submitted in support of his post-trial motion for reconsideration.

Motions for Reconsideration

The CA rejected Husband's argument that the trial court erred by considering only the "evidence presented at trial" and not the new evidence he presented in his motion for reconsideration.
"A motion for reconsideration under Code of Civil Procedure section 1008 must be ‘based upon new or different facts, circumstances, or law.'  The party seeking reconsideration must show not only new or different facts, circumstances or law, but must also provide a satisfactory explanation for the failure to produce the new evidence earlier.  (California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 46, fn. 15; Irmo Herr, supra, 174 Cal.App.4th at p. 1468.)

"In addition to its authority under Code of Civil Procedure section 1008, the trial court retains the ability to reconsider its interim rulings on its own motion and to change those rulings at any time prior to entry of judgment.  (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107; In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1303.)  This ‘inherent authority to correct its errors applies even when the trial court was prompted to reconsider its prior ruling by a motion filed in violation of section 1008.'  (Barthold at pp. 1303-1304; see Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 73-74.)  However, ‘in order to grant reconsideration on its own motion, the trial court must conclude that its earlier ruling was wrong, and change that ruling based on the evidence originally submitted,' and the parties may not ‘obtain reconsideration relying on evidence that could and should have been, but was not, presented to the court in connection with the original motion.'  (Barthold at p. 1314.)"