Family Law Case Studies - Volume 9, Number 10
Published and Unpublished Appellate Court Opinions for October 2011
Published as a service to the Fmaily 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Published and unpublished slip opinions can be secured from www.courts.ca.gov/opinions.htm.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
Hoag v. Diedjomahor (2011) ___Cal.App.4th ___ (CA 4/2 – Opinion filed October 17, 2011)
If the children's best interests are served, a court-ordered parenting plan may include the mother of a deceased parent even if the surviving parent objects.
Father and Mother married in 2005 and they lived with Wife’s mother (Grandmother) until they separated in 2007. In 2006, their first daughter was born. In April 2008, they reconciled and Mother, Grandmother and the parties’ daughter moved into Father’s apartment. Later in 2008, the couple’s second daughter was born.
Grandmother lived with the children from the time they were born, helped care for them and said she felt “like a third parent.” In February 2009, Mother left Father’s apartment with the children and filed for divorce. In March 2009, she unexpectedly died. Thereafter the children remained with Grandmother at an uncle’s house. Father visited them every couple of days.
In May 2009, Grandmother filed a petition seeking to be appointed the children’s guardian. She alleged that Father was “unable to care or provide for” the children because (1) he was temporarily disabled from the waist down and (2) he was an undocumented alien subject to deportation. Child Protective Services investigated but found no concerns about Father’s ability to parent the children. The guardianship court ordered the parties to agree to a visitation schedule but Father obstructed Grandmother’s access, offering only dates when she was at work. In June 2009, the guardianship court imposed a visitation schedule but dismissed the proceedings later that year.
In October 2009, Grandmother filed a family law petition for visitation. (FC § 3102.) By the time of trial, Grandmother had court-ordered visitation for three hours every Wednesday evening and every other weekend. She was allowed to telephone each child once a day. Grandmother asked the trial court to adopt this parenting plan as its final visitation schedule.
Father conceded that the children loved their grandmother and agreed that she should be allowed to spend time with them. Father testified he would allow visitation voluntarily but then reneged on the promise by objecting to any access, even refusing Grandmother telephone access. He said he did so because Grandmother asked the court to make her a custodial parent and because she claimed she was the person who raised the children. Father asked the trial court to deny visitation entirely.
In March 2010 the trial court granted Grandmother’s visitation petition. The court acknowledged that FC § 3102 is unconstitutional when applied to a surviving parent who is fit and who is not opposed to occasional visitation. The trial court concluded Father was a fit parent but also found his opposition to any reasonable visitation by Grandmother was punitive and unreasonable. The trial court fashioned a parenting plan that included Grandmother based upon a finding this was in the best interests of the children. Father appealed. AFFIRMED
In Troxel v. Granville (2000) 530 U.S. 57, the trial court allowed the parents of a deceased parent to have more visitation with their grandchildren than the surviving parent was willing to allow. The plurality opinion acknowledges a parent’s “fundamental right . . . to make decisions concerning the care, custody, and control of [his or her] children” and concluded that the Washington state statute in question unconstitutionally infringed on that fundamental right. The court said if a surviving parent is “fit” it must be presumed he or she is acting in the best interests of the children. The trial court’s error was not giving “special weight” to the surviving parent’s determination of the child’s best interests, noting that the mother had never tried to cut off visitation with the paternal grandparents entirely. “[T]he Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a ‘better’ decision could be made.” (Id. at pp. 72-73.)
FC § 3102 (a) provides that the grandparents of children whose parent is deceased “may be granted reasonable visitation … upon a finding that the visitation would be in [their] best interest.” This provision has been held unconstitutional as applied in situations such as that presented by Zasueta v. Zasueta (2002) 102 Cal.App.4th 1242 where the trial court erred by dismissing the surviving parent’s concerns about visitation because of the grandparents’ drinking, swearing, and uncleanliness, as well as the child’s uneasiness and acting out after visits. (Id. at p. 1253; see also Punsly v. Ho (2001) 87 Cal.App.4th 1099, 1109-1110; Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848; Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1482-1483 [giving the parent’s determination ‘special weight’ does not insulate the parent’s determination from scrutiny by a court. “Troxel does not support defendant’s suggestion that a fit parent’s decisions are immune from judicial review.”].)
The CA approved the trial court’s ruling it that if it is in the best interests of the children, Grandmother can be included in the parenting plan if Father was opposed to occasional visitation - even if he is a fit parent.
The CA noted Troxel did not address the circumstance where a surviving parent is not willing to offer meaningful visitation although it cited with approval state statutes that allow courts to award visitation to a nonparent when a parent has denied visitation. (Troxel at pp. 71-72.) On the other hand, the Troxel plurality adopted a broad “presumption that fit parents act in the best interests of their children.” (Id. at p. 68.) The CA characterized this conflict as presenting a “damned if you do, damned if you don’t” alternative to a surviving parent. Allowing some visitation suggests this is in the best interest of the children - a decision the court must afford special weight - but refusing any visitation also weighs in favor of court-ordered visitation.
The CA ruled that the trial court’s other findings showed that, even applying the presumption that the father’s visitation determination was in the best interest of the children, it would still have allowed visitation. “ [The trial court] found that the father’s claimed reasons for objecting to visitation were not reasonable and not credible. This left, as his real reason, a desire to retaliate against the grandmother ….” [This] understandable reaction … is not based on the best interest of the children. To the contrary, it punishes the children for the sins of the grandmother.” The CA observed that Father’s counsel conceded that visitation with the grandmother was in the best interest of the children and noted, “Thus, the trial court did not simply disagree with the father concerning the best interest of his children. Moreover, it did not fail to give sufficient weight to his determination of their best interest. Rather, … thepresumption that his visitation determinations were in the best interest of the children was thoroughly overcome.”
Finally, the CA rejected Father’s argument that even if the trial court did not err by allowing some visitation, it should not have ordered more extensive visitation than he was willing to offer. The CA said, “The trial court found that the father’s objections to visitation did not arise out of a genuine concern for the best interest of the children. Thus, the constitutionally established presumption that he was acting in the best interest of the children was overcome.”
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 its courts and parties from citing or relying on any unpublished opinions in any action or proceeding, except in the limited circumstances specified by rule 8.1115(b).
Crayon v. Crayon – Unpublished opinion of District 2, Division 7 (Opinion filed October 18, 2011
A trial judge in a non-jury proceeding cannot receive evidence outside the record unless it can be properly judicial noticed and the court complies with Evidence Code § 455.
Husband died in a motorcycle accident in 2007. His wife Tanya and his daughter Yvette survived him. Tanya sought an order from the trial court that a real property that was Husband’s separate property when they married became community property in 2000. In 2006, however, to obtain a loan to purchase a vehicle for Donald, Tanya executed an Interspousal Transfer Deed. Tanya claimed that she believed, despite language on the document, that the property would continue to be held as community property. She said she and Donald continued to treat the property as such until the date of his death. At trial two witnesses supported Tanya’s contention.
Yvette opposed the petition. At trial she called only one witness, her daughter, who testified that Husband lived in his house, had a girlfriend and was estranged from Tanya. When testimony concluded, the trial court asked Yvette if she intended to submit exhibits in support of her position. Over the objection of Tanya’s counsel, the court said it would “take judicial notice of the official records of L.A. County” including a deed, a lease and the probate petition.
The trial court based its statement of decision in part on allegations made by Yvette in court filings about Tanya’s relationship with Donald prior to his death, assertions not addressed at trial. The trial court also relied on two documents that were neither tendered to the court nor the subject of any testimony at trial.
The trial court denied Tayna’s request to characterize the property as community property, but also entered an order that Tanya was estopped from claiming any right of inheritance, an issue never raised at trial.
Tanya appealed. REVERSED
The CA agreed with Tanya that the trial court improperly considered evidence outside the record of trial.
A trial judge, in a non-jury proceeding, cannot receive evidence outside the record: “By undertaking a collateral investigation, the judge abdicates his or her responsibility for deciding the parties’ dispute on the pleadings and evidence properly brought before the court.” (Guadalupe A. v. Superior Court (1991) 234 Cal.App.3d 100, 109, citing Wenger v. Commission on Judicial Performance (1981) 29 Cal.3d 615, 632 [disapproved on other grounds] in Doan v. Commission on Judicial Performance (1995) 11 Cal.4th 294.)
The prohibition against investigation by the trier of fact does not extend to matters that can be properly judicial noticed by the court. (Noble v. Kertz & Sons Feed & Fuel Co. (1945) 72 Cal.App.2d 153, 160.) But this authority is constrained by Evidence Code section 455 and the court must follow the process prescribed by this section.
Evidence Code § 455 provides that matters specified in EC §§ 452 or 451(b) may be judicially noticed but the court must first afford each party a reasonable opportunity to be heard about the propriety of doing so and about the tenor of the matter to be noticed. If the information was not received in open court, the court must afford each party a reasonable opportunity to meet such information.
Here, at least two of the documents the trial court referred to in passing were summaries of recorded documents that had been prepared by a commercial provider. They were not properly the subject of judicial notice because they were not official records.
Moreover, even if the documents had properly been the subject of judicial notice, the trial court was required to give notice to the parties prior to submission of the matter. The court made a passing reference to the records of Los Angeles County but it did not identify the documents or give the parties an opportunity to respond. (See Estate of Russell (1971) 17 Cal.App.3d 758, 765.) Given the reliance the court placed on these documents to draw inferences concerning Tanya’s marital status, motivation and credibility, an opportunity beyond that afforded by the court was required to comply with the statute.
The trial court suggested Tanya consented to or waived her right to object to its taking judicial notice of the documents at issue. The CA disagreed. “Waiver is the intentional relinquishment of a known right, with doubtful cases resolved against a finding of waiver. (See Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31.) The circumstances here do not provide the clear evidence required to make such a finding.”
Irmo Oilney – Unpublished opinion of District 2, Division 7 (Filed October 24, 2011)
The cost to the supported party of caring for an adult incapacitated child cannot be considered in a motion to modify spousal support.
Husband and Wife married in June 1967 and separated in 1996. A 2001 judgment of dissolution incorporating the parties’ MSA requires Husband to pay Wife $3,000 per month in spousal support. It also divided Husband’s pension plan and distributed the equity in the parties’ real and personal property.
In 2002 Husband filed an OSC that led to an order awarding the family residence to Wife and the pension to Husband. The court imputed an income of $1,875 per month to Wife. In 2003, after several evidentiary hearings, the court found a change of circumstances warranted decreasing the amount of spousal support from $3,000 per month to $1,000.
In 2006 Husband filed another SOC to terminate spousal support alleging his income had declined and that he was unable to obtain work as a result of work-related injuries. He also argued Wife had 10 years to become self-supporting but failed to do so. Wife contended Husband’s income was greater than he said based on his lifestyle. She also explained that full time employment was not an option for her because of an illness suffered by the parties’ adult son. The trial court denied Husband’s request to modify spousal support.
In 2010 Husband, now 64 years old, filed another OSC to terminate spousal support or a downward reduction to $200 per month with termination in one year. Husband alleged his income continued to decline and was not sufficient to enable him to pay spousal support. Husband also argued Wife had not made reasonable efforts to become self-supporting despite two warnings to do so by the court. Wife’s response alleged Husband had a continuing ability to pay spousal support. She also pointed out that Husband had not reached retirement age and failed to establish he could not work in any capacity and pointed out that his new wife had an income of more than $4,000 per month. Wife disclosed she had finally obtained full-time employment but claimed her expenses still exceeded her total income because of the cost to care for their adult son.
A central issue addressed at the hearing was the extent to which Husband’s pension income could be considered in determining his ability to pay spousal support. Husband argued the trial court should deduct from his income the amount of pension income imputed to Wife and that it should not consider the financial burden Wife has in caring for their disabled adult son.
The trial court disagreed. Husband appealed. REVERSED
Modification of spousal support must be predicated upon a showing of a material change of circumstances since the last spousal support order. (Irmo Stephenson (1995) 39 Cal.App.4th 71, 76-77.) Generally, this means a reduction or increase in the supporting spouse’s ability to pay and/or an increase or decrease in the supported spouse’s needs. (Irmo McCann (1996) 41 Cal.App.4th 978, 982.
Husband’s Pension Income Must Be Considered
Husband contended that his consent to allowing Wife to purchase his interest in the family home was conditioned on making Wife ineligible “to receive an additional share of pension income as spousal support.” The CA rejected the argument because “that is not what the stipulation provides.” The 2002 stipulation was intended to preclude entirely any consideration of his pension income for purposes of spousal support. “By imputing 41% of the pension payment to Wife, Husband has effectively precluded consideration of that portion of the pension benefit in determining his spousal support obligation.”
The CA explained that in Irmo White (1987) 192 Cal.App.3d 1022, 1029 the court rejected husband’s argument it would be improper “double dipping” to consider income from the pension awarded to husband. It “must be considered along with other appropriate factors when gauging his ability to pay just and reasonable spousal support.” A failure to do so is an abuse of discretion.
It Was Error to Consider the Cost of Caring for The Disabled Son
Parents must support their minor children, which generally ends at the latest when a child turns 19. (FC §§ 3900, 3901 (a).) FC § 3910 (a), however, obligates parents to equally support an adult child who is incapacitated from earning a living and “without sufficient means.” Whether the child is without sufficient means is predicated on “the likelihood a child will become a public charge.” (Irmo Drake (1997) 53 Cal.App.4th 1139, 1154.) Once an adult child is deemed incapacitated within the meaning of §3910 (a), support is determined pursuant to the Family Code support guidelines for minor children. (Drake at pp. 1155-1156.)
The duty of support runs to the incapacitated child (Drake at p. 1152) and it is enforceable by either a parent or the child in an independent civil action (FC § 4000) or by a parent in any marital proceeding or other action under the Family Code where child support is at issue. (See § 4001.) Thus, if the issue is barred in a family law proceeding because it was not raised when child support was determined, it can be raised later in civil proceedings.
Child Support for an Incapacitated Adult May Not Be Disguised as Spousal Support
In Irmo Serna (2000) 85 Cal.App.4th 482, 487-489 the court held it was error to consider the expenses of the parties’ adult able-bodied children in determining the wife’s continuing need for spousal support.
Here, Wife argued Serna did not apply because the parties’ adult son is disabled and unable to earn a living. The CA rejected the argument, reasoning the Legislature has prescribed a process for calculating the amount of support each parent is required to contribute if a child is incapacitated. The process does not permit the decision to be made in the context of a motion to modify spousal support. “The decision to modify spousal support requires the court to evaluate a wide range of matters and to balance the parties’ respective burdens and hardships (see § 4320 (k) & (n)), but an impermissible factor may not be included in the analysis in the guise of acting equitably.” The CA observed that “although Wife was precluded from pursuing relief in these family law proceedings because she had previously failed to raise the issue of incapacitated adult child support, [she] still retains the right to enforce Husband’s duty, if any, to share in the financial responsibility for caring for [the child] in a civil action.”
The question was remanded for reconsideration of Husband’s OSC and a more succinct statement of any material change of circumstances since the last support order.
Irmo Martinez & Lascano – Unpublished opinion of District 2, Division 7 (Filed October 25, 2011)
A default judgment entered after a response has been filed is void and can be set aside at any time.
Husband and Wife married in 2005 and had a son later that year. In 2007, Wife’s request for domestic violence restraining orders was granted. In March 2008, Wife filed a petition for nullity of marriage alleging Husband was not divorced when he married her and the same day filed a petition to establish parental relationship.
In May 2008, Wife appeared but Husband did not. On its own motion, the court consolidated the three cases deeming the nullity action the lead case. A week later Husband filed a request for custody, child support and spousal support in the nullity action. Husband’s filings included a “response to petition to establish parental relationship.” After filing his request for ex parte custody and visitation and support orders, Husband failed to appear at subsequent hearings.
The court set all of the consolidated matters for trial in March 2009. Husband failed to appear for trial. During discussions with Wife’s counsel regarding the terms of a proposed judgment, the trial court noted that Husband’s response in the lead nullity action was mistitled as a “response to petition to establish parental relationship.” The trial court advised Wife’s counsel that Husband misnamed response was not a response to the petition to nullify the marriage and suggest that her counsel file a request to enter Husband’s default. Wife’s counsel did so and in April 2009, the trial court entered a default judgment of nullity that established the child’s parentage and required Husband to pay $1,933 a month for child support.
Over a year later, in June 2010, Husband filed a motion to set aside the April 2009 default judgment. Husband pointed out that he had filed a response in the nullity action even though it was incorrectly titled. Husband alleged that his marriage to Wife was not bigamous because his prior wife was already married at the time she married him, making that prior marriage void. He also said child support should be recalculated because his income in 2009 was far less than $15,000 per month that was imputed.
The trial court granted Husband’s motion to set aside the default judgment declaring the marriage a nullity but did not disturb the custodial and parenting orders. Child support was modified to $131 a month for the period of June 1, 2009 to June 30, 2010. Beginning July 1, 2010, Wife was to pay Husband $25 per month based upon his 19% timeshare.
Wife appealed. AFFIRMED
Vacating the Default Judgment
The CA rejected Wife’s argument that it was error to vacate the default judgment because Husband waited too long to seek to set it aside. Although judgment was entered more than a year before Husband’s motion, it was based on a default that never should have been entered.
The CA pointed out that Husband’s motion was not based upon CCP § 473 (b) or FC § 2122 (a). The motion to set aside the judgment here was governed by CCP §473 (d) that provides the court may set aside any void judgment or order. “The court has authority to set aside a void judgment at any time. (Baird v. Smith (1932) 216 Cal. 408, 410; Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 862.)” A judgment based on an invalid entry of default is void. (Schwab v. Southern California Gas Co. (2004) 114 Cal.App.4th 1308, 1320.)
The CA observed that neither the clerk nor the court is authorized to enter a default when there is a “response” in a family law proceeding. (Wilson v. Goldman (1969) 274 Cal.App.2d 573, 576-577; CRC, rules 5.120(a)(1), 5.122.) Thus the court and the clerk were without power to enter Husband’s default. Putting the wrong title on Husband’s response in the nullity proceeding was said to be immaterial. “It was the fact that he filed a ‘response’ that was determinative. ‘It is settled that the entry of default by the clerk is a ministerial duty and that he has no authority whatever to determine the sufficiency, either as to the substance or form, of a pleading on file. (Goddard v. Pollock (1974) 37 Cal.App.3d 137, 143; see also Husbands v. Torregano (1961) 192 Cal.App.2d 105, 112.) By the time Husband filed his response, all matters had been consolidated into the lead case. … Husband’s response was filed in the lead case [and] thus foreclosed entry of default.”
The CA also deflected Wife’s argument Husband’s failure to appear for trial would have led to the same outcome whether by default or not. “We cannot reverse based on a hypothetically possible result ….” The CA pointed out that “Where the defendant who has answered fails to appear for trial the plaintiff’s sole remedy is to move the court to proceed with the trial and introduce whatever testimony there may be to sustain the plaintiff’s cause of action. (Wilson v. Goldman, supra, 274 Cal.App.2d at p. 576.)” But where an answer has been filed, entry of a default is void.
The CA closed this portion of its opinion with gratuitous, unnecessary criticism of the trial court – pointless remarks that add nothing to the principles the opinion addresses.
Modification of Child Support
A child support order may be modified when there has been a material change of circumstances. (Irmo Williams, (2007) 150 Cal.App.4th 1221, 1234.) “The trial court clearly had a reasonable basis for finding a material change of circumstances. When the initial child support order was made, income of $15,000 per month was imputed to Husband. In seeking modification, Husband presented evidence that he had been working odd jobs and his income for all of 2009 was $13,575.” Further, Husband’s timeshare had increased from 0% to 19%.
The Association of Family and Conciliation Courts, California Chapter Annual Conference
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