Family Law Case Studies - Volume 9, Number 11
Published and Unpublished Appellate Court Opinions for November 2011
Published as a service to the Family Law Bar Association.
Compiled by the Hon. E. J. Burke, 1035 Palm Street, Room 355, San Luis Obispo, CA 93408, jeffrey.burke@slo.courts.ca.gov.
Published and unpublished slip opinions can be secured from www.courts.ca.gov/opinions.htm.
There were very few family law opinions filed in October. Here are the highlights.
Published Opinions
Irmo Seaton (2011) ___ Cal.App.4th ___ (CA 3 – Opinion filed November 8, 2011)
Wife's Nevada marriage to H-2 while still marrited to H-1 is void from its inception whether or not the second marriage was terminated by a judgment. Wife's marriage to H-3 after her marriage to H-1 was dissolved is valid.
Patricia and Richard (H-1) married in 1973 and separated in 1987. Before divorcing H-1, Patricia began dating Henry (who soon became H-2). She “broke up” with Henry in 1988 when she met Jeffrey who eventually became H-3.
While dating Jeffrey, and only ten days after getting a restraining order against Henry, and while still married to Richard, Patricia agreed to meet with Henry for dinner. She said Henry was “very nice” and agreed to meet him in Reno to talk about their relationship. Their dinner included alcohol and before the evening was over, they ended up at a wedding chapel where Patricia and Henry were married. Patricia, it must be said, falsely stated in her marriage license application that her marriage to Richard ended in April 1988.
Patricia regretted her decision when she woke up the next morning. She managed to reach an attorney who advised her after a 40-minute conversation that there was no need to have the Nevada marriage annulled because the marriage to Henry was void because she was still married to Richard.
Patricia disclosed all this to Jeffrey about a week later. She said Jeffrey, an attorney, confirmed that Patricia’s Nevada marriage to Henry was void. Patricia said she accepted Jeffrey’s advice and did not consult any other attorney concerning the matter. Jeffrey denied Patricia’s account, saying he did not discover Patricia had married Henry until sometime in 1989.
Patricia’s marriage to Richard was dissolved in December 1988 but her marriage to Henry was never dissolved or annulled. Jeffrey’s marriage to his wife was dissolved in April 1991. Patricia and Jeffrey married in June 1991.
Seventeen years later, in 2008, Jeffrey filed a petition to annul the marriage. Patricia responded with a request for dissolution. Following a trial in 2009, the trial court nullified the marriage on the ground that Patricia was still married to Henry when she married Jeffrey. The trial court reasoned that, even though Patricia’s marriage to Henry was void, Nevada law required a legal proceeding to terminate a void marriage before it can be said to be over with.
Since an annulment proceeding was required legally to sever Patricia’s marriage to Henry, her marriage to Jeffrey was void. The trial court also found Patricia’s story to be “objectively incredible” and ruled she was not a putative spouse because she did not believe in good faith that her marriage to Jeffrey was valid. Patricia appealed. REVERSED
Patricia argued her marriage to Henry was void even in the absence of an annulment decree terminating her marriage to Henry – thus making her marriage to Jeffrey valid. The CA agreed.
Generally, a bigamous marriage is “illegal and void from the beginning.” (FC § 2201(a)(1).) In California, a void marriage is invalid for all purposes from the moment of its inception, whether or not a court has entered a judgment of annulment . (Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 1114.)
On the other hand, a voidable marriage is valid for all purposes until it is judicially declared a nullity, and may only be challenged by a person who is entitled by statute to assert it is void. (Estate of Gregorson, supra, 160 Cal. at pp. 26-27.) A judgment of nullity relates back and erases a void or voidable marriage and all its implications from the outset. (Sefton v. Sefton (1955) 45 Cal.2nd 872, 874.)
Nevada law on void and voidable marriages is relevant because Patricia married Henry in Nevada prior to marrying Jeffrey in California. Whether Patricia’s marriage to Jeffrey was void depended entirely on whether she was married to Henry when she married Jeffrey.
A Nevada statute unambiguously provides that a marriage is “void without any decree of divorce or annulment or other legal proceedings” when either party has a “former husband or wife then living.” (N.R.S., § 125.290.) But notwithstanding the plain words of the statute, Nevada decisional law includes dicta from the Nevada Supreme Court that suggests an annulment proceeding is nevertheless required legally to sever the marital relationship. (Williams v. Williams (2004) 120 Nev. 559, 564.) And here the trial court, relying on Williams, declared Patricia’s marriage to Jeffrey a nullity because she never formally dissolved her marital relationship with Henry before marrying Jeffrey.
The CA agreed with Patricia that the statement in Williams is dicta because there, neither party disputed that the marriage was void. The argument was about whether Nevada would adopt the putative spouse doctrine. The CA concluded, “Because this statement was unnecessary to the determination of the questions involved in the case, it is dicta and not controlling.”
The CA also agreed with Patricia’s assertion that the California trial court could have declared Patricia’s Nevada marriage to Henry void without even acquiring personal jurisdiction over him. “In Nevada, as in California, a bigamous marriage is void, not merely voidable at the option of one of the parties to the marriage. (McClintock v. McClintock (2006) 122 Nev. 842, 845.) … ¶ Because the fact of the marriage with Henry is material to the validity of the marriage between Patricia and Jeffrey, the trial court could have [and should have] declared the marriage with Henry void in this collateral proceeding.” The judgment nullifying Patricia’s marriage with Jeffrey was reversed.
Ritch v. Thatcher (2011) ___ Cal.App.4th ___ (CA 2/6 – Opinion filed November 14, 2011)
Clear and convincing evidence is required to rebut the presumption that a fit parent's decision not to permit grandparent visitation is in the best intereest of the grandchild.
In 2006 Rochelle Thatcher (Mother) gave birth to a child. The relationship between Mother and the child’s paternal grandmother (Grandmother) was always hostile. Among other disputes, they had differences of opinion concerning father's long-term use of drugs and his death in 2010 of a drug overdose. Although Father left two suicide notes, Grandmother disputed the coroner's determination of death by suicide and told the coroner that Mother may have been responsible for his death.
Before his death, Father filed a parentage petition and Grandmother asked to be joined in the proceedings claiming she wished "to assert her visitation rights" pursuant to FC § 3102. Mother opposed joinder and grandparent visitation.
In 2010, following a lengthy evidentiary hearing, the trial court issued a written ruling that the CA complimented as a "text book example" of how a trial court should proceed. The CA said the trial court properly observed that FC § 3102 requires the court to apply a rebuttable presumption that a fit parent will act in the best interest of her child – a presumption that can only be overcome by clear and convincing evidence showing denial of the grandparent visitation would be detrimental to the child. Here, no evidence showed Mother was an unfit parent and nothing showed, by clear and convincing evidence, that Mother was not acting in the best interest of Grandchild by denying visitation to Grandmother.
The trial court also found that even if Grandmother had overcome the presumption by clear and convincing evidence, it was not in Grandchild's best interest to interject court-ordered visitation with Grandmother in light of the longstanding animosity between Mother and Grandmother.
Grandmother’s request for custody and parenting orders was denied. Grandmother appealed. AFFIRMED
FC § 3102 provides "(a) If either parent … is deceased, the . . . grandparents of the deceased parent may be granted reasonable visitation with the child … upon a finding that the visitation would be in the best interest of the minor child." Courts have construed section 3102 as requiring a rebuttable presumption in favor of a fit surviving parent's decision that grandparent visitation would not be in the best interest of the child. (In re Marriage of W. (2003) 114 Cal.App.4th 68, 74-75; Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1479, fn. 4; Zasueta v. Zasueta (2002) 102 Cal.App.4th 1242, 1253.)
The CA held, “To overcome the presumption that a fit parent will act in the best interest of the grandchild, a grandparent has the burden of proof and must show, by clear and convincing evidence, that denial of visitation is not in the best interest of the grandchild, i.e., denial of visitation would be detrimental to the grandchild. … If grandparent visitation is in the grandchild's "best interest," it is not "detrimental." If grandparent visitation is not in the grandchild's "best interest," it is "detrimental." (In re Randlyanne G. (2002) 97 Cal.App.4th 1156, 1169.)
The CA acknowledged that a grandparent has an important interest in visiting with a grandchild. “But the higher degree of the burden of proof that we adopt simply demonstrates that there is a preference in favor of the presumably correct choice of a fit sole surviving parent. ¶ In formulating our holding, we are guided by and adopt the cogent analysis of Justice Chin in his concurring and dissenting opinion in In re Marriage of Harris, supra, 34 Cal.4th at pp. 247-250; see also the concurring and dissenting opinion of Justice Brown at pages 251-253. To adequately protect a fit sole surviving parent's constitutional right to raise a child, a ‘mere preponderance’ burden as to ‘best interest’ is not sufficient. The ‘clear and convincing’ burden, i.e. evidence ‘so clear as to leave no substantial doubt,’ promotes a parent's constitutionally protected ‘first’ choice. The higher evidentiary burden preserves the constitutionality of [FC §] 3102 and insures against erroneous fact finding. (Id., at p. 248.)”
The CA also rejected Grandmother’s argument that the trial court abused its discretion in finding visitation would not be in grandchild's best interest.
Unpublished Opinions
Please note: The following digests of unpublished opinions of the California Courts of Appeal are presented as case studies to illustrate how commonly recurring family law disputes were resolved in trial and appellate courts.
Caution: Rule 8.1115 (a), California Rules of Court, prohibits courts and parties from citing or relying on any unpublished opinion in any action or proceeding, except in the limited circumstances specified by rule 8.1115 (b).
Irmo Preston – Unpublished opinion of District 4, Division 3 (Filed November 1, 2011)
Choosing not to attend a hearing is not excusable neglect that warrants relief.
In 2008, Father filed a motion to modify his child support obligation. It was continued several times until February 10, 2009 when Father failed to appear. Father elected not to appear on his motion incorrectly assuming that his motion to vacate the divorce judgment would cause the hearing on his support motion to be continued. Father pursued his motion to vacate the judgment through April of 2009, and when he lost, he appealed.
Slightly more than a year after the court had ordered Father’s motion to modify support off calendar, Father moved to reset his support motion for hearing. The motion was denied on the ground it was untimely. Father appealed. AFFIRMED
Father relied upon CCP § 473 (b), as authority for his motion to reset the modification motion. He argued the the time limit within § 473 did not apply and that other legislation without a time limit was applicable. The CA rejected the argument.
The CA said Father’s motion for an order relieving him of the consequences of his failure to appear at the hearing on his motion to modify child support was not filed within the six-month time limitation. The trial court had no choice but to deny it.
The CA said that even if Father’s motion were assumed to be timely, it had to be denied. Father was aware of the date of the hearing and thus could not claim mistake or surprise as to the date. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 611 [“The term ‘surprise,’ as used in section 473, refers to ‘“some condition or situation in which a party . . . is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against”’].)
Instead, Father freely chose not to attend based upon his assumption the motion would be continued because he filed a motion to vacate the underlying judgment. This choice did not reflect ordinary prudence since he did not bother to check with the court to confirm the assumption. “A reasonable litigant, who intended to continue pursuing the modification request, would have done that. And that litigant would have discovered, well within the six-month deadline for relief under section 473, that his motion had been taken off calendar. Father’s neglect of this motion, even if genuine and not feigned, was inexcusable. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258 [excusable neglect is an error a reasonably prudent person under the same or similar circumstances might have made].)”
Adoption of Liam D. – Unpublished opinion of District 5 (Filed November 2, 2011)
In a UPA action the time to appeal an order terminating parental rights begins to run from the date of the oral prounouncement, not the minute order.
Sixteen-year-old Angela D. gave birth to Liam D. (the baby) in June 2010. Before the birth, Angela had selected a prospective adopting couple and authorized the hospital to release the baby to them after his birth. On the same day, 17-year-old Christian filed a petition to establish a parental relationship (FC § 7630) and asked for custody and visitation orders.
The adopting couple filed a petition to terminate Christian’s parental rights, claiming Christian’s consent was not required because he was not a presumed father as defined in FC § 7611 and did not qualify as a Kelsey S. father. (Adoption of Kelsey S. (1992) 1 Cal.4th 816.) The paternity action was stayed pending resolution of the termination action.
Christian’s mother was appointed as his guardian ad litem and an attorney was appointed to represent him. Following a hearing in October and November 2010, the trial court found that Christian did not meet any of the statutory definitions of a presumed father. It also found the evidence established that Christian dis not meet the criteria of a Kelsey S. father because: (1) he initially refused to acknowledge and discuss the pregnancy; (2) did very little to assume the responsibility of fatherhood; (3) failed to assure Angela of his commitment to raise their child together but lived his life as usual; and (4) after the baby’s birth continued to only pay lip service to the idea of fatherhood.
A subsequent hearing produced a finding that it was in the baby’s best interest to be adopted and a ruling granting the petition for termination of parental rights. A judgment was entered on January 21, 2011.
On March 15, 2011, Christian filed a notice of appeal from the judgment served by mail on February 23, 2011. The adopting couple’s moved to dismiss the appeal as untimely. MOTION TO DISMISS GRANTED
Appellate jurisdiction to review an appealable order depends upon a timely notice of appeal. Here, at the January 4, 2010 hearing, the trial court announced its decision from the bench, finding that it was in the baby’s best interests that the adoption proceed and granting the petition for termination of parental rights.
The court’s order dispensing with a father’s consent may be immediately appealed. (FC § 7669 (a). In such cases, CRC, rule 8.406(a)(1) requires a notice of appeal to be filed within 60 days after the rendition of the judgment or the making of the order being appealed. The phrase “making of the order being appealed” has been interpreted to mean oral pronouncement of the order in open court. (In re Alyssa H. (1994) 22 Cal.App.4th 1249, 1252, 1254; Mauro B. v. Superior Court (1991) 230 Cal.App.3d 949, 955-956.)
Thus, Christian’s 60-day period to file a notice of appeal commenced on January 4, 2010 when the trial court orally pronounced its decision to grant the petition in open court, and ended on March 5, 2011. Christian’s notice was untimely.
The CA rejected Christian’s argument that the rule should not be applied because the trial court stated at the January 4 hearing that a judgment needed to be prepared and circulated for review and signature. He cited CRC, rule 8.104(c)(2), that when an appealable order is entered in the court’s minutes and the minute order directs a written order be prepared, the date the order is entered is the date the signed order is filed. “These cases, as well as the rule of court, are inapplicable here, however, as they do not involve the rule by which an appeal is governed. Rule 8.406(a)(1) provides the time to appeal in cases such as this one begins to run from the date of the oral pronouncement, not the minute order.”
The CA also rejected Christian contention that no reasonable person would believe the order was then final and appealable because the trial court did not indicate it was a final judgment by using those words or advising Christian of his appellate rights. “This argument fails because the trial court’s oral pronouncement did not leave any issue for future consideration and further judicial action was not essential to a final determination of the parties’ rights. Accordingly, under the authority he cites, the oral pronouncement was a final decree. … ¶ With respect to advisement of appellate rights, there is no express requirement under the appellate rules applicable to UPA actions that the trial court advise the parent of his or her appeal rights or the time for filing a notice of appeal. (See CRC, rules 8.400-8.416.)” Here, Christian was represented in this proceeding by both a guardian ad litem (GAL) and an attorney. … ¶ Both the attorney and the GAL were present in their representative capacities at the January 4 hearing in which the trial court stated the petition to terminate parental rights was granted. … Since Christian could only act through his attorney, there was no need to advise either Christian or the GAL of Christian’s appellate rights, as the attorney was responsible for pursuing Christian’s appeal. (See, e.g., In re Ryan R. (2004) 122 Cal.App.4th 595, 599.)
The motion to dismiss the appeal was granted and the appeal was dismissed.
Irmo Hogue – Unpublished opinion of District 3 (Filed November 9, 2011)
It is not error to allocate a community asset entirely to the spouse who exclusively managed and controlled the asset and, in the exercise of that control, breached A fiduciary duty to the community
This appeal involved a single escrow account. The parties owned 24 acres of undeveloped property that Husband was attempting to develop. Before the parties separated in 2006, investors deposited $950,000 into an escrow account to provide the funds needed to develop it. The development hit many snags for a variety of reasons, and as a result, the court found that the value of the project at the time of trial was zero.
Husband failed to account for his unilateral withdrawals from the escrow account and presented no explanatory evidence at trial. Despite a court order to do so, Husband “[f]or nearly three years, despite repeated reminders and requests to produce such an accounting, failed and refused to do so.” Husband insisted the funds were not community property and that an escrow statement showing the persons to whom draws and withdrawals were made was a sufficient accounting.
At the outset of trial, the court declined to bar Husband from presenting evidence regarding the withdrawals as a sanction for disregarding court orders during discovery. Wife also asked the court to charge the proceeds in the escrow account entirely to Husband except for those amounts traced to the community property joint checking account. After hearing the evidence and arguments of counsel, the trial court struck Husband’s evidence about withdrawals from the escrow account and charged him with $840,000. The court also awarded Wife a family business she had been operating for several years. The court found Husband tried to damage the business by sowing seeds of dissension among employees.
Husband appealed. AFFIRMED
All property acquired by a married person during marriage is presumed to be community property. (FC § 760; Irmo Ettefagh (2007) 150 Cal.App.4th 1578, 1585-1586.) The community estate must be divided equally. (FC § 2550.)
The CA concluded Husband failed to rebut the presumption and thus rejected Husband’s argument that the escrow account was not community property. The funds were deposited into the parties’ escrow account during their marriage and were presumptively a community asset. The fact that the source of the funds was a third party does not rebut the presumption.
The CA observed that the problem was not characterization of the asset but the absence of an adequate accounting by Husband. It said that if Husband had demonstrated that the funds were deposited into the account exclusively for the purpose of developing the 24 acres and that the money was all disbursed for that purpose, then the community asset would have been exhausted and Donna would have no interest in a nonexistent asset. “Not only did he breach his fiduciary obligation to Donna to account for the disbursements, he failed to provide the very evidence he needed to demonstrate that there was no community asset or, at least, that it was far less than the $840,322 he was credited.”
The one-page escrow settlement statement was no help to Husband. Discovery orders were made three years prior to trial but trial but Husband “failed to produce any accounting, despite continuous attempts from Respondent to obtain information on how the construction funds were spent.”
Although the trial court was obligated to divide the community estate equally, it had broad discretion to allocate the assets “‘by whatever method or formula will “achieve substantial justice between the parties.”’” (Irmo Gowan (1997) 54 Cal.App.4th 80, 88.) Husband’s uncooperative and obstructive trial tactics produced the outcome he complained about on appeal. The CA compared this case to Irmo Quay (1993) 18 Cal.App.4th 961 where, while the parties were separated and against his wife’s wishes, husband loaned a friend almost $990,000. The court assigned to him the whole face value of the note, rejecting his request to split the note evenly between the parties because he had breached his fiduciary duty to the community.
Quay demonstrates that a court retains the discretion to allocate a community asset entirely to the one spouse who had exclusive management and control over the asset and, in the exercise of that control, breached his fiduciary duty to the community.
Irmo Shannahan – Unpublished opinion of District 2, Division 4 (Filed November 10, 2011)
Courts of Appeal cannot issue opinions advising trial courts about how to handle an OSC that may be filed in the future.
A 2008 judgment of dissolution ordered Husband to pay spousal support of $5,000 per month until Wife received her full share of the community estate. She was also awarded exclusive use of a residence and Husband was ordered to make the lease payments as additional nontaxable support.
In 2010, Husband filed an OSC to modify spousal support from $5,000 to $3,850 per month. He contended his average income had gone down, while his expenses had gone up. He asserted the value of his retirement account assets dropped from $3.1 million to $2.1 million and claimed his actual rate of return was just over $10,000 per month. He stated that his spousal support obligation including the lease payment was just under 70% of his gross monthly income. Husband’s I&E showed social security income of $1,766 per month and monthly expenses of $19,375. He stated he had paid his attorney over $118,000 and still owed over $138,900. He submitted Schedule K-1’s for 2008 and 2009 showing business losses of $55,595 and $51,261 respectively.
Wife opposed Husband's modification contending he did not show a material change in circumstances. She argued he failed to show his income had decreased, that her income had increased, or that her needs had decreased. She argued Husband's documents were inadequate because they did not account for his retirement accounts and lacked current profit and loss schedules for his law practice. Wife pointed out that pursuant to the judgment, Husband was to provide her with a means of spousal support until she had received all of the property and funds due her under the judgment and averred Husband had not paid anything due to her. She asked for attorney fees of $15,000 and $10,000 as a sanction for his “bad faith” motion.
The trial court said it would not reconsider findings that were made when support was set in 2008 but would instead judge Husband’s 2010 request for modification against those standards. The court found Husband's K-1’s and profit and loss statements insufficient to permit an assessment of the income he had available for support and gave him 30 days to decide if he wished to employ a forensic accountant to address the issue including the distributions from his retirement accounts. Husband refused to do so.
The trial court denied Husband's motion and assessed a sanction of $20,000 as a sanction under FC § 271 or alternatively, a need-based award pursuant to FC §2030. Husband appealed. AFFIRMED
Modification of spousal support requires a material change of circumstances since the last order. This means there must be a showing of a reduction or increase in the supporting spouse's ability to pay and/or an increase or decrease in the supported spouse's needs. The trial court must reconsider criteria set forth in Family Code section 4320 in making this assessment. (Irmo Dietz (2009) 176 Cal.App.4th 387, 396.)
On appeal, Husband said little about how the trial court’s rulings were an abuse of discretion but instead asked the CA to instruct the trial court that when he filed his next motion to reset support, that it must “consider all of the then-current evidence on the other side of the equation relating to Wife's present circumstances and needs, and cannot treat the previous finding that she had $15,000 in reasonable monthly expenses as a 'done deal,' like [the family court] did here."
The CA declined the suggestion and said rendering of advisory opinions does not fall within either the functions or the jurisdiction of a court of appeal. “We do not pass on questions about a motion that might or might not occur in the future. (See Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 173.)
The CA also rejected Husband's challenge on the ground he failed to demonstrate that any alleged error was prejudicial. (California Constitution, Article VI, § 13 [reversal is precluded unless " 'the error complained of has resulted in a miscarriage of justice.' "].) The CA said it does not presume error and that Husband did not explain how, but for the court's asserted misapplication or misunderstanding of the law, it was reasonably probable it would have reached a result more favorable to him.
The CA also affirmed the imposition of sanctions. The CA adopted the trial court’s reasoning that “Husband's failure to provide sufficient evidence of his income frustrates the policy of the law to promote settlement of litigation. It would be impossible to settle the issue of spousal support without fully disclosing to Wife information regarding Husband's income. … Husband is an experienced tax attorney … for each of the last two years, Husband lists 'gross receipts' from his law practice in excess of $600,000. In each of the last two years, Husband also lists 'Operating Expenses' that exceed his gross receipts. There is no indication of what those expenses are or whether they are reasonable or even related to the business. … Moreover, Husband's Income and Expense Declaration does not add up. He claims to have $19,375 in monthly expenses and no income other than $1,766 in social security benefits and monthly retirement account withdrawals of $11,000. Yet, mysteriously, Husband lists no debt on his Income and Expense Declaration.”
FC § 271 authorizes a fees and costs award as a penalty for obstreperous conduct, but by the statute's terms the penalty is aimed at conduct that frustrates settlement of family law litigation. (Robert J. v. Catherine D. (2009) 171 Cal.App.4th 1500, 1520.) Section 271 does not require the conduct to be frivolous, taken solely for the purpose of delay, grounded in an improper motive such as harassment, or indisputably without merit. Nor is the amount limited to costs and fees attributable to the bad conduct. (Irmo Corona (2009) 172 Cal.App.4th 1205, 1226.)
Subject to the condition that the award not constitute an unreasonable financial burden, the trial court has broad discretion to award section 271 sanctions. (Robert J. at p. 1520.)
The CA said the trial court’s express and implied findings are supported by the evidence and thus Husband did not show an abuse of discretion in the sanctions order or any other reversible error.
Finally, the CA imposed an $8,000 sanction, payable to the court, for filing a frivolous appeal. “An appeal is frivolous ‘when it is prosecuted for an improper motive — to harass the respondent or delay the effect of an adverse judgment — or when it indisputably has no merit — when any reasonable attorney would agree that the appeal is totally and completely without merit.’ (Irmo Flaherty (1982) 31 Cal.3d 637, 646; see Airlines Reporting Corp. v. Renda (2009) 177 Cal.App.4th 14, 22.)
Romero v. Romero – Unpublished opinion of District 4, Division 1 (Filed November 14, 2011)
Threatening e-mails may provide the basis for DVPO's.
In 2008, Wife applied for domestic violence protective orders against Husband alleging Husband had repeatedly sent her threatening e-mails that included his intention to kill her. He sent similar messages to the "Elkins Task Force" urging the Judicial Council to help prevent “a horrible tragedy from occurring.”
Husband’s response claimed his e-mails were protected by his First Amendment right of free speech. He also claimed that because of a "disclaimer" included in one of the messages, these acts could not be a basis for a protective order.
The court granted Wife's ex parte request for a TRO. Following a 2009 hearing, the trila court issued a Restraining Order After Hearing with a term of five years. Husband appealed. AFFIRMED
“Under the DVPA, the trial court is authorized to issue a protective order enjoining a party from engaging in specific acts of abuse against a former spouse. (FC §§ 6211 (a), 6218, 6320, 6340 (a).) The term "abuse" includes "placing a person in reasonable apprehension of imminent serious bodily injury to that person" (§ 6203 (c)) as well as any action the court may enjoin, such as threatening behavior and harassment. (§§ 6203 (d), 6320.)
Here, the CA found no abuse of discretion. “Wife would naturally fear for her safety based on Husband's references to the Santa-suit murders, his threatening tone, and his intention to seek revenge.”
Various other contentions were also rejected.
Irmo Monroe – Unpublished opinion of District 5 (Opinion filed November 14, 2011)
Unsworn statements of counsel are insufficient to support an award of attorney fees.
A 2008 judgment of dissolution provided that Wife was to receive an $80,000 equalizing payment, that when tendered, would terminate the court’s jurisdiction to award spousal support. Husband did not tender the equalizing payment on time and failed to distribute other items until 2009.
In 2009, Husband moved to modify child visitation and support. Wife’s response requested attorney fees for herself and minor’s counsel. She also moved to enforce the judgment and requested an order setting Husband’s spousal support arrears.
Wife’s motion was heard in January 2010. During the hearing, Wife’s counsel stated that she had incurred almost $14,000 in attorney fees and costs. Husband’s counsel responded that Wife’s counsel had not provided a statement or declaration of what services were provided, the number of hours spent for any particular service, or any other information that would be required to determine whether such fees were reasonable and therefore he could not address the amount.
Thereafter, Wife’s counsel made an offer of proof that he had put 38 hours into the case and his rate is $350 per hour noting he had made 10 court appearances and issued several subpoenas to Husband. Wife’s counsel further stated costs included $300 to minor’s counsel and $40 for court costs. However, Wife’s counsel did not submit any supporting evidence.
The trial court criticized Husband for his delays and ordered him to pay Wife $10,000 in attorney fees and costs and further ordered him to pay $1,500 to minor’s counsel. Husband appealed. REVERSED
Although the trial court may rely on its own experience and knowledge, the court must be informed of the extent and nature of the services rendered. (Irmo Cueva (1978) 86 Cal.App.3d 290, 300.) … The court cannot award fees based on speculation or on opposing counsel’s unsworn statements. “‘Without ascertaining whether or at what hourly rate the work for which reimbursement was sought was actually done, much less that the work was “reasonably necessary” …, the trial court could not properly find that imposing’ liability for the other spouse’s legal fees was appropriate.” (Irmo Duris & Urbany (2011) 193 Cal.App.4th 510, 515.)
Here, the only evidence supporting the $10,000 attorney fee award was Wife’s counsel’s unsworn statement that he spent 38 hours at $350 per hour. Not enough. “The court did not have sufficient information to inquire into the reasonableness of Wife’s attorney fees. Under these circumstances, ordering Husband to pay Wife’s attorney fees was an abuse of discretion. ‘Neither the attorney for a party to a dissolution action nor the attorney’s client is entitled to recover, from the opposing spouse, a contributive share of whatever fees the attorney chooses to charge. (Irmo Keech (1999) 75 Cal.App.4th 860, 870.)”
Irmo Dodds & Kaddoura – Unpublished opinion of District 1, Division 4 (Filed November 15, 2011
It was not error for the court, on its own motion, to change the venue for the resolution of custody and parenting issues to Massachusetts after the children had lived there seven years.
A 2005 judgment of dissolution incorporates the parties’ agreement that Mother would have primary physical custody of the children and that they would reside in Massachusetts. In 2009, the parties modified their custody and visitation agreement to provide, among other things, that during the summer months the children would be with their father in July and with their mother during August.
In 2010, there was an issue concerning Father’s timely return of the children during the summer so Father moved to clarify the language in their agreement. He argued that the phrase “prior to August 3” was ambiguous and sought to modify the language to ensure the children were with him from July 2 to July 31 of each year.
The trial court denied Father’s motion, finding that the language of the agreement was clear. That same day, Father filed another motion seeking orders about air travel and telephone and web-cam access. Father also filed a motion for reconsideration of the order denying his request for clarification of the phrase “prior to August 3” asking the court to declare that it meant August 1 or 2. The court also, on its own motion, set a third motion to be considered on that date, viz., whether the case should be transferred to Massachusetts as a more convenient forum under Family Code section 3427.
In 2011, following a hearing, the trial court denied Father’s motion for reconsideration, made orders about telephone calls and air travel and found Massachusetts was a more convenient forum based on several factors including the history of domestic violence in the case, the length of time the children have resided in Massachusetts, and the fact that relevant witnesses, evidence concerning the children’s education, medical issues, counseling, and extracurricular activities would be found there. The trial court stayed the California proceedings to permit Mother to commence proceedings in Massachusetts. Father appealed. AFFIRMED
Father argued that the trial court erred in denying his motion for reconsideration. The CA disagreed. “The record reflects that Father did not proffer any new evidence for the court’s consideration and simply reargued his earlier motion for clarification of the language in the agreement. As the court found, Father failed to raise any new or different facts, circumstances or law to support reconsideration of the order. (See Code Civ. Proc., § 1008, subd. (a).) Accordingly, under Code of Civil Procedure section 1008, the court properly denied the motion.
Father also asserted that it was error for the trial court to raise the issue of transferring the case to Massachusetts on its own motion. The CA rejected this argument as well.
“Family Code section 3427 specifically provides that the court, on its own motion, can raise the issue of whether it should decline to exercise jurisdiction on a child custody determination because it is an inconvenient forum. (FC § 3427 (a).) In determining whether it is an inconvenient forum, the court must consider “all relevant factors” including, among other things, which state can best protect the parties and the child from domestic violence, how long the child has resided outside this state, the financial hardship to the parties and the nature and location of the evidence required to resolve the pending litigation. (FC §3427.) “If the court determines that it is an inconvenient forum, it shall stay proceedings upon the condition that a child custody proceeding be commenced in the more appropriate forum.” (FC § 3427 (c).)
Here, the trial court mentioned a history of domestic violence but found the most compelling consideration was the length of time (seven years) that the minors resided outside of California because “all of the evidence about their schooling, counseling, extracurricular activities, [and] medical treatment is going to be found where they reside.” The CA ruled the trial court did not abuse its discretion in doing so.
Patrick v. Alacer – Unpublished opinion of District 4, Division 3 (Filed November 16, 2011)
An increase in the value of a separate property company must be equitably apportioned between the community and the estate of the owner of the stock as of the date of death.
Husband founded Alacer in 1972 and was its only shareholder until his death in 2003. Husband and Wife married in 1988.
Wife filed a complaint in this action in December 2003 alleging she and Husband built Alacer together, both before and during their marriage, and that she had a community property interest in the Alacer stock. After adding indispensible parties, Wife’s fifth amended complaint included a cause of action seeking a declaration of her “community property and stock ownership interest in Alacer.” The court bifurcated this cause of action, staying discovery on the others.
Following a trial, the trial court found (1) Wife’s declaratory relief cause of action arose from Family Code § 1101 (b) and was timely filed; (2) Alacer was Husband’s separate property because he founded the company and was its sole shareholder before he married Wife; (3) some portion of Alacer’s increased value must be equitably apportioned to the community because Husband contributed more than minimal efforts into the business; (4) Alacer’s value should be apportioned using the method in Pereira v. Pereira (1909) 156 Cal. 1; (5) a fair return on Husband’s separate property investment in Alacer was $530,000; (6) Alacer’s value at Husband’s death was just under $7 million; (7) Wife was entitled to prejudgment interest starting at Husband’s death; and (8) Wife was not entitled to receive Alacer shares to satisfy her community property interest.
Wife appealed and the defendants cross-appealed. AFFIRMED
Wife’s Declaratory Relief Cause of Action Was Timely
The CA rejected the Defendants’ argument Wife’s declaratory relief cause of action was time-barred. Wife’s declaratory relief cause of action is derived from FC § 1101 (b) and could “be commenced … upon the death of a spouse without regard to the time limitations set forth in paragraph (1).” Only the defense of laches applies.
The CA explained, “ ‘The absence of a limitations period for particular causes of action is not without precedent.’ If anything, it is entirely understandable for no limitations period to govern the determination of community property after a marriage ends. A spouse’s interest in community property during marriage is ‘present [and] existing.’ (§ 751.) When the marriage ends, the spouses hold any unadjudicated community property as tenants in common. (Berry v. Berry (1989) 216 Cal.App.3d 1155, 1159.) And ‘[t]he statute of limitations never bars relief between tenants in common in an action of partition.’ (Adams v. Hopkins (1904) 144 Cal. 19, 27.) Thus, no limitations period applies to actions to partition and account for the community’s interest in vested retirement benefits. (Sangiolo v. Sangiolo (1978) 87 Cal.App.3d 511, 513.) And no limitations period should apply here, where Wife seeks a determination of the community’s interest in Alacer or its increased value.”
The Court Permissibly Apportioned The Community Property Interest in Alacer’s Growth
The court found the community improved Alacer through Husband’s devotion of nontrivial efforts toward Alacer during the marriage. Using the Pereira method, the court awarded a fair rate of return to Husband’s separate property investment in Alacer. After ascertaining Alacer’s value at the time of Husband’s death, the court awarded the balance of Alacer’s increased value to the community.
The CA rejected both Wife’s and the Defendants’ appeals from these findings. “Where community efforts increase the value of a separate property business, it becomes necessary to quantify the contributions of the separate capital and community effort to the increase.” (In re Marriage of Dekker (1993) 17 Cal.App.4th 842, 850, 851.)
There are two approaches to allocating business profits. The Pereira approach is to allocate a fair return to the separate property investment and allocate the balance of the increased value to community property as arising from community efforts. The Van Camp approach determines the reasonable value of the community’s services, allocates that amount to community property and the balance to separate property.” (Dekker at pp. 852-853.) The trial court is permitted to select whichever formula will effect substantial justice between the parties. Here, the trial court found the Pereira formula was the most appropriate method and there was no abuse of discretion in this ruling.
The trial court then determined the value of Husband’s separate property interest in Alacer at the start of the marriage, allowed a fair return to the separate property investment during the marriage, and then “allocate[d] the balance of the increased value to community property as arising from community efforts.” (Dekker at pp. 852-853.)
The CA rejected the Defendants’ argument that the trial court was required to find whether Wife’s community property interest was already satisfied by Husband’s Alacer compensation during the marriage. “The court need not ‘limit the community interest to a salary as reward for a spouse’s efforts. … To limit the community to compensation received by way of salary during the marriage would ignore California’s egalitarian marriage model and the apportionment formula of Pereira . . . .’ (Id. at p. 854.) Whether or not the community received salary, a court must determine to what extent the increased value of the separate property business is attributable to community effort.”
The CA also rejected Wife’s claim that the trial court improperly fixed the increase in Alacer’s value at Husband’s death rather than at the time of trial. “Upon the death of a married person, one-half of the community property belongs to the surviving spouse and the other half belongs to the decedent.” (Prob. Code, § 100 (a).)” Thus Wife was entitled to one-half of the community’s interest in Alacer’s increased value at Husband’s death and thereafter, Alacer itself and any increase in its value continued to be Husband’s separate property. (§ 770 (a)(1), (a)(3), (b).)”
The CA overruled Wife’s contention that the trial court impermissibly used the “capitalization of excess earning” method to value Alacer, observing her expert also used it to produce a valuation that fluctuated wildly from $19 million to $73 million, before settling at $30 million.
Wife Was Ndot Entitled to Alacer Stock
The CA rejected Wife’s contention that her community property interest in Alacer’s increased value must be satisfied with an award of Alacer stock. Wife failed to prove she had a community property interest in Alacer stock. “She showed only a community property interest in the increased value of Alacer” and the trust that held the stock said nothing about how her interest in the increased value of the company could be satisfied.
The CA also rejected Wife’s claim Alacer became community property because Husband commingled her community property interest with his separate property. “California law does not require apportionment of community efforts devoted to separate property on an ongoing basis, upon pain of transmuting that separate property into community property. Courts account for community efforts toward separate property through equitable apportionment after the marriage, not transmutation during the marriage. (See Dekker at pp. 852-853.)”
Finally, the CA concluded Wife did not have a pro tanto interest in Alacer. Irmo Moore (1980) 28 Cal.3d 366, 373-374 Irmo Marsden (1982) 130 Cal.App.3d 426, 438-440 have no application here because these doctrines conflict with the prevailing approach used when a separate property business is improved by the devotion of community efforts — equitable apportionment using Pereira or Van Camp.
Wife Permissibly Received Prejudgment Interest
The CA approved an award of prejudgment interest to Wife. There was no abuse of discretion in the trial court’s finding that it was equitable to award interest because Wife’s community interest existed as of the date of Husband’s death, and because Wife has lost the use of her share of the community property.
“Prejudgment interest is awarded to compensate a party for the loss of the use of his or her property.” (Bullis v. Security Pac. Nat. Bank (1978) 21 Cal.3d 801, 815 (Bullis).) Wife’s loss of use of a community property interest she owned upon Husband’s death in 2003 sufficiently supports the court’s exercise of its discretion to award prejudgment interest.
Thomas v. Orlando – Unpublished opinion of District 1, Division 2 (Filed November 17, 2011)
Statements to health care providers in anticipation of a motion to modify a visitation order are related to litigation and are constitutionally protected speech subject to an anti-SLAPP motion.
In 2010, Thomas filed a complaint against Orlando and others for intentional infliction of emotional distress and slander. Thomas asserted that he and Orlando shared joint legal custody of their child and that in 2009 Orlando took the child to a medical center and reported that Thomas was physically and verbally abusing the child.
Thomas also alleged that a clinical psychologist and a pediatrician told staff that the child was suffering from severe psychological problems as a result of physical and verbal abuse committed by Thomas. Thomas alleged these statements were false and maintained that Orlando made them to cause him “to lose his visiting and custody rights” to the child and to inflict on him extreme emotional distress.
Orlando moved to strike Thomas’s complaint pursuant to the anti-SLAPP statute (§ 425.16). She asserted the statements were privileged communications and protected speech because they were made in documents and testimony to the family law court. She maintained Thomas could not demonstrate a probability of prevailing on any of his causes of action.
Following a hearing, the trial court granted Orlando’s special motion to strike without leave to amend. Thomas appealed. AFFIRMED
The Anti-SLAPP Statute
C.C.P. § 425.16 provides that a “cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” An act is in furtherance of a person’s right of petition or free speech if it is “any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.” (§ 425.16 (e)(2).)
An anti-SLAPP motion requires the trial court to make a two-step determination. First, the defendant must make a threshold showing that the challenged cause of action is one arising from protected activity. Second, if the threshold showing was made, then the court must determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) To establish the probability of prevailing, the plaintiff need only state and substantiate a legally sufficient claim.
Protected Activity
The CA said the question in this case was whether Orlando’s statements to the child’s medical providers, which are the basis of Thomas’ claim, was made “in connection with” an issue under consideration in a judicial proceeding. “[A] statement is ‘in connection with’ litigation … if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266.)
Here, the CA said Orlando’s statements were related to the issues in the family court proceedings because in 2009 Orlando took the child to see his pediatrician in anticipation of a motion to modify an order in 2006 granting visitation to Thomas. Other communications to medical personnel occurred while the custody and restraining proceedings were pending. The CA added that Orlando did not have to make her statements to parties or potential parties to the litigation and said the communications are not required to concern the exact issue presented to the trial court to be privileged.
Here, the child’s medical condition and the treating doctors’ evaluations were not just connected––but were the reasons for––the family court’s orders. Thomas’s treatment of the child was not an ancillary evidentiary issue, but was an issue at the family court proceedings. The trial court properly found that Orlando had made the threshold showing that all of the communications underlying the FAC were constitutionally protected speech.
Probability of Prevailing
To show a probability of prevailing, a plaintiff must make a prima facie showing that would support a judgment in plaintiff’s favor. “The plaintiff need only establish that his or her claim has minimal merit to avoid being stricken as a SLAPP.” (Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 735.) Here, the trial court concluded Thomas could not demonstrate a likelihood of prevailing because Orlando’s statements were privileged statements made “[i]n a . . . judicial proceeding” (Civ. Code § 47(b)(4)) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 955.)
“Here, all of Orlando’s communications underlying the claims of slander and intentional infliction of emotional distress in Thomas’s FAC fall within the scope of Civil Code section 47 (b)(4), and therefore the lower court correctly found that Thomas could not show his claims had minimal merit.”
Irmo Bell - Unpublished opinion of District 2, Division 1 (Filed November 18, 2011)
Judicial intervention in the children’s religious upbringing must be conditioned upon a clear, affirmative showing of harm or likely harm to the child.
Wife is Jew and Husband is a Mormon. They raised their children in the Jewish faith from birth. Beginning in July 2009, one month after Wife obtained a domestic violence restraining order against Husband, he began to involve the children in Mormon religious education. Wife claimed that the children were suffering confusion and distress as a result.
In 2009, the parties stipulated to a court-ordered child custody evaluation. The evaluator’s report was unfavorable to Husband. Husband retained his own expert to prepare a report in rebuttal.
The court appointed evaluator said, “The issue is the children’s identity. [T]hey are four and five years old. They were raised as Jewish children with Jewish customs and practices. They celebrated Jewish holidays. They were attending a Jewish community center and receiving Jewish education. [¶] Both children reported surprise and confusion that their father took them to the Mormon religious education classes. They thought he had changed religions. As far as those children could see that they are Jewish children, raised as Jewish children and became confused when the teachings that they were being exposed to were contradictory or confusing in terms of their own religious education and their identity.”
So what?
The expert also opined that although Husband’s religious commitments were sincere, his post separation instruction of the children was “a means of controlling and intimidating Wife and the children. … [I]t is a weapon … and the children are suffering because of it.” Husband’s expert agreed that Husband’s practice of involving the children in Mormon religious education posed a substantial threat of psychological harm to the children.
The trial court prohibited Husband from having the children participate in any religious training classes without the written consent of Wife until the twelfth birthday of each child. Husband appealed. AFFIRMED
The CA rejected Husband’s contention that the record of the proceedings did not support a conclusion that exposure to the Mormon religion was harmful to the children.
The CA conceded that both parents have a constitutional right to the free exercise of religion. “Consequently, ‘a court will not enjoin the noncustodial parent from discussing religion with the child or involving the child in his or her religious activities in the absence of a showing that the child will be thereby harmed.’ (Irmo Murga (1980) 103 Cal.App.3d 498, 505; see also Irmo Mentry (1983) 142 Cal.App.3d 260, 269 [judicial intervention in the children’s religious upbringing must be “conditioned upon a clear affirmative showing of harm or likely harm to the child”]; Irmo Weiss (1996) 42 Cal.App.4th 106, 117 [same].)
Here, the CA concluded that expert’s opinion that the children have “suffered” because of Husband’s conduct, support the orders made by the trial court. The CA noted that even Husband’s expert did not dispute the court-appointed expert’s conclusions and recommendations.
The CA characterized Husband’s challenges to the sufficiency of the evidence as selective and misleading.
For What It's Worth
This opinion illustrates an entirely unwarranted intrusion by the courts in the personal life of this family. Here, the courts have put the immense power of the state behind an order that the father of these children must never discuss his sincerely felt religious principles with them. The order was made because “experts” opined the children might be “confused” by such a discussion.
I suggest that courts should stay out of the religious lives of families even if the children are surprised or momentarily confused by the discussion and even if their confusion was “upsetting” in some way. No one needs this much government.
If this much intrusion in family life is warranted, then nothing would seem to be off limits. Courts can be asked to approve or disapprove any form of comparative religious studies in any venue and are permitted to get involved in sex education at home or in other settings. They can, I suppose reasonably be asked to approve or disapprove the books, movies and other entertainment to be offered to children.
There are limits to the reach of strangers into our family lives and I believe it was exceeded in this instance.
Katz v. Katz – Unpublished opinion of District 2, Division 6 (Filed November 21, 2011)
The court had no authority to renew an expired restraining order without a hearing.
Richard was directed verbal and written abuse and threats at his brother Stephen and Stephen’s family. Stephen received "personal conduct, stay-away, and residence exclusion" orders restraining Richard's contact and dealings with Stephen and his family. Richard did not comply with the restraining order and continued to harass Stephen and his family.
Richard was convicted of various offenses and but in 2006 was convicted again and sentenced to five years in prison for, among other things, grand theft, forgery and stalking, crimes he committed after being released on parole. From July 2007 through June 2009, Richard bombarded Stephen, Stephen's employer and the family lawyer with dozens of letters that, alternatively, blamed Stephen and his family for ostracizing him, apologized for his bad behavior, and begged for money.
The restraining orders expired while Richard was incarcerated.
In 2009, in anticipation of Richard's release, Stephen filed a request for a domestic violence restraining order substantially similar to the orders issued in 2006. Temporary restraining orders were issued and a hearing was scheduled. In March 2010, Richard filed an ex parte application for a continuance because his attorney had withdrawn. Stephen opposed the request and the trial court denied the request and issued a 5-year restraining order pursuant to FC § 6345 without affording Richard a hearing or other opportunity to present evidence. (FC § 6345 (a).) Richard appealed. REVERSED
FC § 6345 provides that a restraining order may only be renewed prior to the expiration of the prior order. The CA explained that although no case has interpreted the term "renewal" in section 6345, it was guided by the 2012 revision to section 6345 adding provision that a “request for renewal may be brought at any time within the three months before the expiration of the orders." Since the requested order was not a renewal of the prior order, the procedures required for issuance of an initial order apply, and the trial court erred in issuing the order without affording Richard an opportunity to present evidence.
The initial restraining order had expired three years prior to the second order being issued. In these circumstances, Richard is entitled to an opportunity to present evidence in response to the petition.
Irmo Gonsalez – Unpublished opinion of District 5 (Filed November 21, 2011)
Parents may agree to provide for child support through the transfer of real property if the court retains jurisdiction to modify child support upon a showing of changed circumstances.
When Husband and Wife separated in 2005, Husband executed three quitclaim deeds to Wife of property they acquired during the marriage in consideration of Wife’s agreement not to seek child support or spousal support. Soon thereafter, Husband left the state and failed to pay any child support to Wife.
A 2006 default judgment terminated the marriage and settled issues of custody and visitation and reserved jurisdiction to award child support. In 2007, Husband filed a motion to set aside the Interspousal Transfer Deeds. The trial court denied the motion, basing its ruling on the findings Husband clearly understood the nature of the documents he was signing, intended to transfer his interest and did so in exchange for Wife’s promise to waive support. The court also found the deeds satisfied the requirements of FC § 852.
Husband appealed. AFFIRMED
Husband argued the judgment was void and is in violation of public policy because it purported to terminate Husband’s obligation to provide support for his child. The CA rejected the contention, concluding the judgment did nothing of the kind but instead specifically provided the court was reserving jurisdiction to make further orders if circumstances changed in a way that made support necessary in the child’s best interests.
The CA explained, “While the agreement of the parties in this case to take care of child support through the transfer of interest in real property, instead of through periodic (usually monthly) cash payments, is not the norm, it is not unheard of. (See Nicholas v. Nicholas (1952) 110 Cal.App.2d 349.) The parties are permitted by the Family Code to make an agreement as to child support. (Fam. Code, § 3580.)” As to future child support, the trial court retained jurisdiction to modify the level of child support upon a showing of changed circumstances, notwithstanding a prior agreement of the parties to the contrary. (See Irmo Alter (2009) 171 Cal.App.4th 718, 727.)
The CA also rejected Husband’s argument that the trial court’s reservation of jurisdiction over the issue of child support eliminated any consideration for his conveyance of the properties to Wife. “In reality, the passage of time has shown that there was nothing illusory or lacking in good faith about Wife’s promise not to seek child or spousal support. The record shows that Wife has not sought such support—and Husband has not paid such support—in the six years since Husband signed the properties over to Wife pursuant to the agreement.” Moreover, as support accrued in the amount established under the agreement (namely, zero) the court lost jurisdiction to retroactively increase that obligation. (FC § 3651 (c)(1).)
Finally, the CA rejected Husband’s claim that undue influence by Wife caused him to sign the deeds, pointing to trial court rulings about his credibility and its finding he clearly understood the nature of the transfer documents he signed and his intentions to transfer his interest in all three properties to the minor children and [Wife] in exchange for [Wife] not seeking child support or spousal support.
Irmo LaCount – Unpublished opinion of District 4, Division 3 (Filed November 29, 2011)
A prenuptial agreement waiving any interest in the value of a retirement account on the date of the marriage reserves to the community only the increase in the value during the marriage.
In 2000, the parties executed a prenuptial agreement that specifically extinguishes any claim Wife might have “in the value as of the date of marriage of Husband’s interest in his retirement plans.” Another section of the agreement provides that all debts and other liabilities attached to their separate property assets are the responsibility of the party who owns the property.
In 2007, Husband and Wife signed an agreement that modified the prenuptial agreement to eliminate any interest Wife might have in Husband’s retirement plan. The parties separated in 2008 and in a bifurcated trial, the trial court invalidated the amendment because it conferred an unfair advantage to Husband. The court also ruled that the community had an interest in “to the extent of any growth increase in the retirement plans.”
At the trial of the reserved issue, an expert testified that there was $161,767 in the plan on the date of the parties’ marriage and $253,533 at the time of trial. Husband argued $161,767 was his separate property pursuant to the Prenuptial Agreement. He said only the increase in value after the date of the parties’ marriage ($91,766) was community property that should be divided equally.
Wife argued that Husband’s separate property interest was only $40,333 because the court ruled in the bifurcated trial was that any gains in the account were community property. She contended that “paper losses” in the account should be assigned to Stephen’s separate property because the prenuptial agreement stated all debts and other liabilities incurred on behalf of separate property assets were to be the sole responsibility of the party who owns that property.
The trial court rejected Wife’s arguments and found Husband’s separate property interest in the retirement plan was $161,767 and found the difference in value to be community property and divided it equally. Wife appealed. AFFIRMED
Wife first argued the trial court failed to provide a statement of decision that “explains the factual and legal basis for [the court’s] decision as to each of the principal controverted issues at trial . . . .” (CCP § 632.) But the trial court had attached a two-page memorandum explaining its decision to the judgment on reserved issues. Although not denominated as a statement of decision, the CA said the document clearly satisfies any obligation the court had to provide Wife with a statement of decision.
As to the substantive point on appeal, Wife claimed the court wrongly interpreted the prenuptial agreement and its own prior rulings. The CA disagreed.
The rules applicable to the interpretation of contracts generally are applied to premarital agreements. (Irmo Bonds (2000) 24 Cal.4th 1, 13.) “Paper losses in a retirement account based on fluctuations in the stock market are not ‘debts’ or ‘other liabilities.’ The only sensible meaning to ascribe to the phrase ‘debts or other liabilities incurred on behalf of separate property assets’ is the ordinary meaning — obligations incurred by Husband such as a loan against the value in the retirement account. As the accounting expert observed, ‘A loss is a loss in value, not a liability.’ ”
Wife agreed that she and Husband intended to assign the rise in value above $161,767 to the community. The CA said the trial court properly likened its treatment of the retirement account to an analysis under Family Code § 2640 (b) that provides a party must be reimbursed for the separate property contributed to the acquisition of property of the community estate. “The amount reimbursed shall be without interest or adjustment for change in monetary values and may not exceed the net value of the property at the time of the division.”
Irmo Olekslewicz – Unpublished opinion of District 1, Division 1 (Filed November 29, 2011)
It is not error to refuse to impute an earning capacity to the proceeds of the sale of a residence by a prisoner if, at the time, there was no child support order.
Wife divorced Husband several years ago. Neither party sought child support at that time, although their agreement did not foreclose a future order of support. In 2009, Husband was arrested on serious criminal charges and jailed. In 2010, he liquidated his interest in a residence to pay debts and legal bills. Later in 2010, Wife sought an order of child support but by the time of the hearing, Husband had neither assets nor income, nor, given his likely extended incarceration, the potential for future income.
The trial court declined to order child support. Wife appealed. AFFIRMED
Wife argued the family court should have awarded child support on the basis of interest income imputed on the $100,000 Husband received for his interest in the family home. The CA rejected the argument.
Child support is calculated according to a uniform statutory guideline that considers the parents’ income and ability to pay. (FC §§ 4052, 4053 (c), (d).) Although the guideline only includes income as a factor (FC § 4055 (b)(1)(B), (C) & (E)), the family court is permitted, in appropriate circumstances, to base a child support order on a parent’s earning capacity rather than his or her actual income (FC § 4058 (b)). “Ordinarily, a parent who is incarcerated has no income on which child support can be awarded, and income may not be imputed to an incarcerated parent on the basis of earning capacity unless the parent is shown to have the ability and opportunity to work while in prison. (El Dorado County Dept. of Child Support Services v. Nutt (2008) 167 Cal.App.4th 990, 993.)”
The CA distinguished Brothers v. Kern (2007) 154 Cal.App.4th 126, a case cited by Wife where the CA affirmed the family court’s order increasing the father’s child support payments, basing the increase in part on interest income imputed to assets the father liquidated or could have liquidated at the time of his arrest. (Id. at p. 132.) Further, it affirmed the family court’s use of the value of the assets at the time of the father’s arrest, a significantly greater figure than the amount remaining in the trust account by the time of the support hearing. The CA in Brothers explained that when the father was arrested, he “stopped making support payments, lost his ability to earn income by working, and transferred the proceeds of the sale of his assets to his lawyer. He made no provision for the support of his daughter, choosing instead to devote all his available resources to his defense. The CA said the point of using imputed income to calculate child support is to determine what the obligor could have earned if he or she had taken an opportunity to do so instead of taking a course of action that did not result in income.
The CA here distinguished Brothers because in Brothers, the father was already under an order of child support at the time he was arrested. In contrast, Husband was never under an order of child support, either when he was arrested or, later, when he sold his interest in the family home. In liquidating his interest in the home and paying off debts and attorneys, Husband did not compromise his ability to comply with an existing court order. Nothing was left by the time of the hearing in November 2010. There was no abuse of discretion in the family court’s decision not to enter an order of child support on the theory of imputed interest income.