Family Law Case Studies

Family Law Case Studies - Volume 9, Number 9

Published and Unpublished Appellate Court Opinions for September 2011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Published and unpublished slip opinions can be secured from www.courts.ca.gov/opinions.htm.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

Neil S. v. Mary L. (2011) ___ Cal.App.4th ___ (Opinion filed September 16, 2011)

1. An alleged biological father who never married the mother, and who never received the children into his home, cannot attain presumed status under FC § 7611 and has no standing to bring a UPA action.
2. An alleged biological father without a personal relationship with the child has no constitutionally protected, due process liberty interest in establishing a parental relationship.

In May 2009, Mary gave birth to twins. Her husband Scott was present and accepted the twins as his children.

In February 2010, Neil filed a petition to establish he is the biological father of the twins. He asked for genetic testing and for custody and parenting orders. Neil’s petition explains that from May 2008 to October 2008, he and Mary had an affair while they were stationed in Bahrain.. According to Neil, Mary told him she had conceived in September and that he was the children’s father.

Neil’s declaration alleged that he was helpful and attentive to Mary during her pregnancy but after she left Bahrain in February 2009 returned to San Diego, Mary notified him that she and Scott would be raising the children, and that her husband's name would be placed on their birth certificates.

Mary moved to quash the petition arguing Neil lacked standing to pursue an action under FC § 7630. Mary alleged that factually Neil was not necessarily the twin’s biological father and added that her husband Scott prepared for the twins' arrival and birth, was present when they were delivered, chose their names with her, attended parenting classes with her, and visited the twins every day while they were in neonatal intensive care. Scott's name was placed on the children's birth certificates. According to Mary, Scott was a "stay-at-home" dad and the twins' primary caregiver, did their feeding, changed diapers, bathed and dressed them, took them to doctors' appointments, played and read to them, and was otherwise responsible for meeting their needs.

Neil argued the marital presumption of paternity did not apply and contended that for a variety of reasons, the state has a compelling interest in identifying the biological fathers of children.

The trial court found that while Neil held the children out as his own, he never received them into his home. The court concluded that Adoption of Kelsey S. (1992) 1 Cal.4th 816 precluded Neil’s argument that he made a reasonable attempt to receive the twins into his home but was prevented by Mary from doing so. The trial court concluded Neil could not establish presumed father status under section 7611 (d) and granted Mary's motion, quashing Neil's petition. The parentage petition was dismissed.

Neil appealed. AFFIRMED

Presumptions of Paternity

FC § 7540 provides that "the child of a wife cohabitating with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.". FC § 7611 describes presumptions of paternity that may be rebutted by clear and convincing evidence..

Section 7611 (a) states "a man is presumed to be the natural father of a child born during, or within 300 days after the termination of, his marriage to the child's mother.". FC § 7611(d) creates a rebuttable presumption that a man is the natural father of a child if he "receives the child into his home and openly holds out the child as his natural child.".

Where presumptions suggest more than one person may qualify as a presumed father, the trial court must reconcile the competing interests and determine which of the presumptions, on the facts, is founded on the weightier considerations of policy and logic. (In re Jesusa V. (2004) 32 Cal.4th 588, 603.)

FC §7612 "[does] not envision an automatic preference for biological fathers, even if the biological father has come forward to assert his rights.". (Jesusa V. at p. 604.. Rather, the core considerations are the integrity of the family and protection of the child's well being. "[I]ncreasingly …, our courts have resolved paternity disputes by looking to the existence and nature of the social relationship between the putative father and child.". (Craig L. v. Sandy S. (2004) 125 Cal.App.4th 36, 51.)

Standing

The CA concluded Neil did not have standing under the UPA to assert the existence of a parent-child relationship with the children. Scott is married to Mary and he not only held out the children as his own but also took them into his home. Scott has presumed father status under both subdivisions (a) and (d) of section 7611. (Dawn D. v. Superior Court (1998) 17 Cal.4th 932, 937; Lisa I. v. Superior Court, supra, 133 Cal.App.4th 605, 613-614.)

Neil never married or attempted to marry Mary, and never received the children into his home despite his efforts to do so. Neil has no way to attain presumed status under section 7611 and is precluded from bringing a paternity action and from compelling Mary and the children to submit to blood tests to resolve the question of biological parenthood. (Dawn D. at p. 938; Lisa I. at pp. 613-614.)

Constitutional Challenges

Neil's focus on appeal was his claim that the UPA is unconstitutional to the extent it denies him the opportunity to establish or develop a parent-child relationship. He claimed he had a "prenatal relationship with [the children]" but was "obstructed" by the mother and her husband from taking them into his own home to prevent him from become a presumed father. Pointing out DNA analysis can now determine paternity with virtual certainty, Neil asserts that "a biological connection alone ought to be enough" on which to base his right to assert or prove he has parental rights. Neil also contended he was entitled to the same rights and obligations as "formerly-married-now-divorced" biological fathers. The CA rejected the arguments.

The CA concluded Neil's constitutional due process challenge was squarely resolved by Dawn D.. There, the mother became pregnant while separated from her husband and living with another man but several months later she reconciled with her husband. After the child was delivered, mother, her husband and the child all lived together.

The Supreme Court first pointed out that mother's husband was a presumed father under section 7611 (a) and (d), and that the alleged biological father met none of the statutory conditions for presumed father status. (Dawn D. at p. 937.. Thus, the alleged biological father could not rebut the husband's presumed father status because he lacked standing to bring the paternity action.

As to the question of whether the alleged biological father had a liberty interest protected as a matter of substantive due process, Dawn D. held that because the alleged father had never had any "personal relationship" with the mother's child, but "only an alleged biological link with an attempt to negotiate an agreement for child support and visitation," he could not establish a constitutionally protected due process liberty interest. (Citing Michael H. v. Gerald D. (1989) 491 U.S. 110 [the biological father of a child born to a woman married to another man has no liberty interest in continuing his relationship with the child].) (Dawn D. at p. 941.)

Finally, the CA rejected Neil’s equal protection argument. It noted there is no constitutional requirement of uniform treatment and rejected Neil’s argument that he must be allowed to parent these children because divorced biological fathers are entitled to do so; i.e., that unmarried fathers must not be treated differently than married fathers.

Neil failed to raise the issue in the trial court but the CA said that even if the challenge were properly before the court, “We have not been provided authority for the proposition that marital status is a suspect classification requiring a heightened level of scrutiny.&rdquo. Moreover, since establishing a relationship with his child born to a woman married to another man at the time of the child's conception and birth is not a constitutionally protected fundamental right or interest, there is no basis to apply a strict scrutiny standard that would look to the state's compelling interest that justifies the law.&rdquo.

Lefebvre v. Lefebvre (2011) ___ Cal.App.4th ___ (CA 2/8 - Opinion filed September 28, 2011)

A false report to the poolice is not "protected activity" that warrants dismissal of a claim for damages under the anti-SLAPP statute.

Jon and Alice Lefebvre married in 1995. Over a period of years, Alice began reading books on the subjects of divorce and money, including at least one that discussed the use of false criminal accusations against a spouse in a divorce proceeding. Alice and Nancy Toothman then conspired to bring false criminal accusations against Jon.

In August 2005, in furtherance of their conspiracy, Alice reported to a sheriff deputy that Jon threatened to kill her and their children. Nancy confirmed the report. A criminal case was filed against Jon.

The charge was tried to a jury and Jon was found not guilty. The jurors, on their own initiative, read an extraordinary statement into the record criticizing law enforcement for a “shocking absence of any real investigation.&rdquo. The jury opined, "There was no credible evidence supporting the indictment. We believe prosecuting this as a crime was not only a waste of time, money, and energy, for all involved, but is an affront to our justice system." They recommended restitution to Jon for the fees and costs he incurred defending himself. Later, the court found Jon factually innocent.

Jon then sued Alice and Nancy for money damages alleging they conspired falsely to charge him with a crime, that their statements precipitated the criminal action, that they repeated their false accusations at trial, and that the trial ended with his acquittal, and the subsequent finding of factual innocence.

Alice and Nancy filed a joint special motion to strike Jon’s complaint under the anti-SLAPP statute. (C.C.P. § 425.16.. The trial court found that the record conclusively established Alice’s and Nancy’s statements to the police were an “illegal activity” under Penal Code § 148.5, and thus were not a “protected activity.&rdquo. (See Flatley v. Mauro (2006) 39 Cal.4th 299, 322-325.. Having failed to meet their initial burden, their motion was denied.

Alice and Nancy appealed.. AFFIRMED

Citing Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, the CA explained that the anti-SLAPP statute provides a procedure for striking meritless causes of action at the earliest possible stages of litigation. The statute has two steps. The first step is to determine whether the defendant has made a threshold showing that the challenged cause of action is one “arising from protected activity.&rdquo. In this step, the moving defendant must demonstrate that the acts upon which the plaintiff’s claim is based were taken in furtherance of the defendant’s right of petition or free speech under the federal or state Constitutions. (Gerbosi at p. 443.)

If the court finds the threshold showing was made, then the plaintiff must demonstrate a “probability of prevailing.” This means the plaintiff must show “a reasonable probability of prevailing,” not that a preponderance of the evidence demonstrates that he or she will prevail. The test is to accept as true the evidence favorable to the plaintiff and then to evaluate the defendant’s evidence to determine if the defendant has defeated the plaintiff’s evidence as a matter of law. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823.. The trial court does not weigh credibility or compare the weight of the evidence.

Alice argued that her false criminal report to the police was absolutely privileged under CC § 47 (b) and then extended her argument to contend that her “privileged activity” amounted to “protected activity” within the meaning of the anti-SLAPP statute. The CA disagreed.

The CA rejected the contention that if the activity is privileged, it is protected. The CA observed that since “Alice’s act of making a false police report was not an act in furtherance of her constitutional rights of petition or free speech, the anti-SLAPP statute simply never [came] into play in this case.. Neither the federal nor the state constitutional rights of petition or free speech encompass a right to file a false crime report.”

The CA said the Supreme Court’s opinion in Flatley v. Mauro (2006) 39 Cal.4th 299defeated Alice’s position. “While there is a relationship between the litigation privilege (Civ. Code § 47) and the anti-SLAPP statute, the scope of the protections afforded under the two statutes are … ‘not substantively the same.’&rdquo. (Flatley at p. 323.) … “Section 425.16 is not concerned with securing for litigants freedom of access to the judicial process. The purpose of section 425.16 is to protect the valid exercise of constitutional rights of free speech and petition from the abuse of the judicial proces. (§ 425.16 (a)), by allowing a defendant to bring a motion to strike any action that arises from any activity by the defendant in furtherance of those rights. (§ 425.16 (b)(1).. By necessary implication, the statute does not protect activity that, because it is illegal, is not in furtherance of constitutionally protected speech or petition rights. (Wilcox at p.819.)

The Supreme Court added, “Civil Code § 47 does not operate as a limitation on the scope of the anti-SLAPP statute. The fact that Civil Code section 47 may limit the liability of a party that sends to an opposing party a letter proposing settlement of proposed litigation does not mean that the settlement letter is also a protected communication for purposes of section 425.16. Therefore, we reject [the] contention that, because some forms of illegal litigation-related activity may be privileged under the litigation privilege, that activity is necessarily protected under the anti-SLAPP statute.&rdquo. (Flatley at pp. 324-325.)

The CA acknowledged that the privilege established in Civil Code § 47 has been applied in cases involving false reports or perjured testimony, but found this legal proposition is irrelevant for purposes of the first step of the anti-SLAPP procedure. The CA said Alice “may have a valid privilege-based defense that she may present in another procedural context, but such a defense may not be presented by way of an anti-SLAPP motion.”

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 Gurnee - Unpublished opinion of District 4, Division 1 (Opinion filed September 1, 2011)

Terms may be implied to clarify ambiguities in an MSA if they are reasonable and necessary to effect its purpose.

A 1995 MSA incorporated in a judgment of dissolution requires Husband to pay Wife 21.37% of his gross U.S. Navy retirement pay. Additionally, the MSA said Husband had elected to maintain Wife as the beneficiary of 21.37% of the Navy Survivor Benefit Plan for so long as he was required to pay her a portion of his military retired pay.

Husband’s election was conditioned, however, upon his ability to designate who would be the beneficiary of the balance of the SBP benefits. Finally, the court reserved jurisdiction to supervise the payment of any obligation, the division of assets, the execution of any documents and the overall enforcement of the MSA.

Husband remarried and named his new wife as a 78.63% beneficiary of his SBP. The military however, deleted Wife as an SBP beneficiary and in 2006 Husband stopped paying Wife her 21.37% share of his monthly retirement pay, a fact Wife discovered in 2008.

Wife then filed an OSC to require Husband to pay her the agreed amount of his retirement pay and to reinstate her as an SBP beneficiary. Husband agreed to make up his arrearages and to inquire of the military whether it was possible to name both Wife and his current wife as SBP beneficiaries.

Wife also requested an order that requires Husband to obtain a $250,000 term life insurance policy on his life that names her as the beneficiary. She said her research revealed she could not now be reinstated as a former spouse beneficiary due to the passage of time.

Husband opposed the relief requested arguing the MSA did not require him to continue Wife as an SBP beneficiary if the military would not allow him to name his current wife as SBP beneficiary while also keeping Wife as a beneficiary.

In 2009, following a hearing the trial court set Husband’s arrearage at $33,000 and required him to secure a life insurance policy in the face amount of $100,000 naming Wife as the sole beneficiary. Wife was required to pay the premiums.

Husband appealed. AFFIRMED

Interpretation of the MSA

Husband argued that his obligation to name Wife as an SBP beneficiary was strictly contingent on his ability to name another beneficiary as to the remaining 78.63%. If it couldn’t be done, he owed her nothing. The trial court and the CA disagreed. Husband was required to ensure bifurcated SBP coverage.

The relevant principles of contract interpretation include, “look[ing] first to the language of the contract . . . to ascertain its plain meaning or the meaning a layperson would ordinarily attach to it.". (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18.). The interpretation must give effect to the mutual intention of the parties. If contract language is reasonably susceptible to more than one construction, it is ambiguous and in this event it is the duty of the court to take into account all the facts, circumstances and conditions surrounding the execution of the contract. (Frankel v. Board of Dental Examiners (1996) 46 Cal.App.4th 534, 544.)

Whether or not a contract is ambiguous, "[a] contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties.". (§ 1643.). "The court must avoid an interpretation which will make a contract extraordinary, harsh, unjust, or inequitable.". (Strong v. Theis (1986) 187 Cal.App.3d 913, 920.. Finally, terms may be implied if necessary to make a contract reasonable regarding matters to which the contract does not manifest a contrary intention. (§ 1655.)

Here, the CA concluded the MSA was ambiguous because it was not clear about what Husband’s obligation was to Wife if naming his new wife as a beneficiary of the SBP resulted in her disqualification as an SBP beneficiary. The CA said two reasonable constructions were possible and, like the trial court, it adopted Wife’s interpretation as the most reasonable and just interpretation.

“It would be both unjust and unreasonable for Husband to agree to elect and maintain Wife as a 21.37% SBP beneficiary pursuant to the MSA, while allowing him to in effect avoid that obligation (or any substitute obligation) by subsequently naming his new wife as an SBP beneficiary as to the remaining 78.63%. … We conclude the MSA should be reasonably interpreted as requiring Husband to provide Wife with a source of benefits equivalent to her share of his retirement pay on his death, whether as an SBP beneficiary or by a substitute plan or policy.&rdquo. Husband could not avoid his obligation under the MSA to provide Wife with a source of income on his death reasonably equivalent to her divested 21.37% SBP beneficiary interest. The trial court properly supplied an implied term of the MSA to clarify the ambiguous MSA language and provided a reasonable term necessary to effect its purpose. (§ 1655; In re Marriage of Corona, supra, 172 Cal.App.4th at p. 1222; Binder v. Aetna Life Ins. Co., supra, 75 Cal.App.4th at p. 852.)

Irmo Thuy & Dinh - Unpublished opinion of District 4, Division 3 (Filed September 2, 2011)

A breach of fiduciary duty may undo a transmutation but cannot establish a transmutation that fails to comply with FC § 852(a).

The Property Judgment

Husband purchased the Bourbon Property before the parties married. Title remained in his name at all time relevant to the proceedings. All the money used to acquire the property came from his separate property sources.

During the marriage, Wife gave Husband $16,600. She said she gave Husband the money based upon his promise to repay loans from his family to acquire the property and because he promised to add her name to title. Wife admitted that Husband never conveyed the property to her and acknowledged that neither her first nor her second dissolution petitions claimed an interest in the Bourbon property.

Husband said he used the money partially to repay one of the loans on the property and to pay off credit card bills. Husband denied telling Wife that he would put her name on the title in exchange for her payment and that he would use the money to pay off his family’s loans.

Following a trial, the court said it was satisfied Wife traced the $16,000 she gave Husband to an acquisition of an interest in the property simply because it believed her testimony.

The trial court ruled Husband’s acceptance of the money to pay down his family’s loans “constitutes an execution of an agreement by the parties.&rdquo. It said that even though there was no deed showing an interest in Wife, she was entitled to a 50% interest in the property as her community interest. The trial court reasoned that Husband breached his fiduciary duty to Wife by failing to put her name on the title to this property.

The trial court then extended the ruling to the other properties Husband acquired during the marriage through the use of money derived from equity in the Bourbon property.

The Support Judgment

Husband paid $76,000 to Wife to settle all the issues arising from Wife’s 2003 dissolution petition. Although the judgment was later set aside, Wife kept the money.

The trial court set guideline child support but terminated jurisdiction to award spousal support because it found Wife had remarried. Even so, the trial court found that the first dissolution judgment included Husband’s agreement to pay Wife $80,000 in spousal support. The trial court expressly considered FC § 4320 factors and ruled that Husband’s 2003 payment would be treated “as a spousal support buyout” in these proceedings.

Husband appealed. REVERSED

Awarding 50% of Bourbon to Wife Was Error

Married persons may transmute separate property to community property but only if it is “in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.&rdquo. (FC § 852 (a).. “The express declaration must unambiguously indicate a change in character or ownership of property. A party does not ‘slip into a transmutation by accident.’&rdquo. (Irmo Starkman (2005) 129 Cal.App.4th 659, 664.. There is no question that the Legislature intended . . . to invalidate all solely oral transmutations.&rdquo. (Est. of MacDonald (1990) 51 Cal.3d 262, 269.)

Section 852 (a) is not subject to traditional statute of frauds exceptions such as partial performance (Benson at p. 1100), nor does using the doctrine of equitable estoppel to prove an oral transmutation through “extrinsic evidence” avoid the writing requirement. (Irmo Campbell (1999) 74 Cal.App.4th 1058, 1062-1065.)

Here, the CA said there was no writing capable of serving as a valid transmutation of the Bourbon Property. “The mere fact that Wife performed on the alleged oral agreement to transmute the character of the Bourbon Property by delivering $16,000 to Husband is irrelevant to the question of whether a transmutation occurred.”

The CA also rejected Wife’s claim that Husband’s breach of his fiduciary duty allowed the court to conclude the Bourbon Property was community property. The CA acknowledged the rule that husbands and wives may enter into transactions respecting property and that such transactions are subject to the general rules governing fiduciary relationships. Their relationship imposes a duty of the highest good faith and fair dealing and when an inter-spousal transaction advantages one of them, it is presumed to have been the product of undue influence. (Irmo Haines (1995) 33 Cal.App.4th 277, 293-294.)

But all that these rules entitled the trial court to find was that Wife kept money hidden in a drawer and in a secret bank account and that Husband used Wife’s separate property to pay off debt on his separate property. “It was not entitled to find Husband violated his fiduciary duty under FC § 721 (b), by not completing a transaction to transmute the Bourbon Property. Wife could undo a transmutation but she cannot establish a transmutation that fails to comply with the terms of section 852 (a). [A]bsent a transmutation that satisfies section 852 (a), there is no basis for applying the presumption of undue influence under section 721 (b). (Benson at p. 1112.)”

The CA did not disagree with the trial court’s conclusion Husband enriched himself at Wife’s expense, but criticized the trial court for punishing him without regard to the harm she suffered. “A more suitable remedy is reimbursement of Wife for her separate property contributions to the Bourbon Property. (See § 2640 (c).&rdquo.

Although she didn’t, Wife might also have claimed that payment of the Bourbon property mortgage with community earnings resulted in a community interest arising as to a portion of the Bourbon Property. (See Irmo Moore (1980) 28 Cal.3d 366, 371-372; Irmo Marsden (1982) 130 Cal.App.3d 426, 437.)

Other Property Awarded to Wife

The error in regard to the Bourbon property infected other awards to Wife. The CA observed that Husband was entitled to use his equity in the Bourbon Property to speculate in other real properties. It said, “Wife’s separate property contributions and/or community contributions to the Bourbon Property do not entitle her to an equal share in every subsequent investment by Husband.”

Spousal Support

The CA concluded it was error for the trial court to characterize the $76,126 Wife received from Husband in their failed attempt to settle their disputes as a spousal support “buyout.&rdquo. The CA said the trial court appropriately cited factors set forth in FC § 4320 and correctly acknowledged Wife’s remarriage ended Husband’s potential spousal support obligation. The error was that there was no finding as to when Wife remarried and thus it was “impossible to say whether a payment of $76,126 in spousal support was appropriate. … For example, if wife remarried one year after the parties’ separation, the spousal support award would nearly equal Husband’s yearly earnings” and thus unreasonable.

Irmo Hashemian - Unpublished opinion of District 4, Division 3 (Filed September 3, 2011)

A payor spouse who seeks a reduction of support based on the changed circumstances of reduced income bears the burden of showing a lack of ability and opportunity to earn income.

In 2007, the court ordered Husband to pay Wife temporary spousal support of $30,000 per month. Reserved issues were tried in 2008 and Husband was ordered to pay “permanent” spousal support of $26,000 per month. Shortly thereafter, Husband filed an OSC to modify spousal support to $0 based upon an alleged change of circumstances. He asserted that the income he derived from his insurance business had fallen “as a result of the economy.”

Wife’s response treated Husband’s motion as one to modify temporary spousal support and argued it was an untimely motion for reconsideration. She said there nothing new or different warranted reconsideration.

The court denied Husband’s request and ordered him to pay Wife $12,500 in attorney fees and $5,000 in attorney fees as sanctions.

Husband appealed. AFFIRMED

Support Modification

Modification of spousal support depends 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.). In determining whether circumstances have changed, the factors listed in FC § 4320 must be considered. These factors expressly require consideration of the supporting spouse’s ability to pay taking into account his or her earning capacity. (Stephenson at p. 78; FC 4320(c); Irmo Simpson (1992) 4 Cal.4th 225, 233.)

Here, the joint forensic CPA opined that Husband’s 2010 monthly controllable cash flow was $35,793. By contrast, the trial court’s 2009 statement of decision found that Husband’s monthly cash flow for the same period was $125,000. Husband argued that since there was no evidence he voluntarily decreased his income, a finding of no changed circumstances was impossible and reversal was required. The CA disagreed pointing to facts that suggested Husband was not giving it his best effort.

Husband claimed it was Wife’s burden to show that he has the ability to earn more than he is presently earning. The CA rejected the argument. “Wife did not file a motion seeking to increase spousal support or to have income imputed to Husband. Husband filed a motion to decrease spousal support. … Irmo Bardzik (2008) 165 Cal.App.4th 1291 [establishes that] ‘in the very ordinary situation where the payor [spouse] loses his or her job and seeks a reduction in court-ordered support based on the changed circumstances of lack of income, it will be the payor [spouse], as moving party, who bears the burden of showing a lack of ability and opportunity to earn income.’&rdquo. (Id. at p. 1304.)

Husband also claimed that the trial court was not permitted to impute income to an underemployed spouse without making affirmative findings of ability and opportunity. Wrong. “Simpson states ‘statutory guidelines … authorize the trial court in its discretion to consider the earning capacity as well as the actual income of the supporting spouse in determining support, but they do not specify or limit the circumstances under which the trial court may look to earning capacity in addition to, or in place of, actual income in fixing support.’&rdquo. (Id. at p. 232.)

The CA distinguished Irmo Loh (2001) 93 Cal.App.4th 325 where the court said unreported, or underreported, income can be shown by means of lifestyle evidence - at least when it is not based on new spouse or non-marital partner income. There, lifestyle evidence consisting of photographs of her former husband’s car and his girlfriend’s house was not enough. Here, Wife did not rely on lifestyle evidence without evidence of current financial information and was not seeking to upwardly modify Husband’s support obligation. Rather, it was Husband’s burden to show his cash flow significantly decreased, why it was less and whether he had made any efforts to bolster his business.

Attorney Fees

Husband claimed the award of fees was error because Wife’s need was not considered. He emphasized references in FC §§ 2030, 2032 that require an award of fees to be made based upon an assessment of a party’s need for legal representation.. The CA disagreed.

First, his argument was squarely rejected in Irmo O’Connor (1997) 59 Cal.App.4th 877 where the court there said FC §2032 (b) permits an award of fees to a spouse even if that spouse has sufficient resources to pay attorney’s fees and costs from his or her own pocket. (See also Irmo Duncan (2001)90 Cal.App.4th 617, 631.). Moreover, the CA pointed out the various ways in which the record reflected the trial court’s consideration of the statutory requirements in making its order.

Peyton v. Kringlie - Unpublished opinion of District 5 (Filed September 7, 2011)

A finding based on suspicion or a hunch is not substantial evidence that supports a ruling that a child should have only therapeutic visitation with a parent.

Sarah is the mother of Austin, 11 and Adrian, 9. Andrew is Austin’s father and Aaron is Adrian’s father. From the time the children were born until 2008, they lived with their mother and grandmother, Rebecca.

In February 2008, the trial court ordered an immediate change of custody of Austin and Adrian to Andrew’s father based upon a finding that Sarah and her mother lived in filthy unhealthy, dangerous living conditions and that they neglected the children’s upbringing and education.

In November 2008, the parties stipulated to an order for joint legal custody and agreed the children would live primarily with their fathers. The agreement provided gradually increasing parenting time for Sarah with the expectation that the parents would share joint physical custody equally within 6 to 12 months. Pending modification, Sarah was given supervised visitation on each Saturday or Sunday and for one or two days during the week after school. In 2009, Sarah’s visitation became unsupervised and included one weekly overnight.

In 2009, the court appointed parenting coordinator reported Sarah’s increasing timeshare had gone steadily and smoothly. Austin’s father reported that he acted out at home and school at the commencement of the unsupervised day visits. Overnights on the other hand were no problem.

Based upon a number of very weak indicators, the coordinator said she “suspected” the children were having unauthorized contact with their grandmother and speculated that Sarah may have facilitated that contact. She offered the opinion that “Mother, grandmother, and children are capable of executing such a fraud” and recommended that Rebecca submit herself to the jurisdiction of the court for the purpose of a psychological evaluation.

In August 2009, Austin’s father and the attorney appointed to represent the children filed an OSC seeking to require Sarah’s visitation to be supervised. They alleged Sarah violated the terms of the court’s order by allowing contact between the children and Rebecca and asserted they were told to lie about it.

At a contested hearing in September 2009 the coordinator was the only witness. She admitted she did not know where the coaching came from although she suspected it was Rebecca. The coordinator explained that she had no way of knowing whether Sarah ever coached the children, but in spite of this, offered the conclusion “Sarah failed to protect the children by not instructing them that they had to tell the truth.&rdquo. Nevertheless, the parenting coordinator recommended supervised visitation with Sarah for six to eight hours, three or four times per week.

The trial court concluded Sarah either directed the children to lie about contacts with their grandmother or acquiesced in her mother’s instructions to them to lie about it. The court relied solely on testimony that Rebecca was seen at the apartment complex where Sarah lived and that the children’s reactions to inquiries “about these things” was suggestive.

The trial court found that exposing the children to further “inculcation of withholding information from their fathers or being deceitful about what is going on when they’re in the custody of their mother is very damaging.&rdquo. The trial court granted full legal and physical custody of the children to their fathers and limited Sarah’s visitation to therapeutic reunification once a week. Mother appealed. REVERSED AND REMANDED WITH INSTRUCTIONS TO ASSIGN THE MATTER TO A DIFFERENT JUDGE.

It was an abuse of discretion to limit Sarah to therapeutic visitation

It is the policy of this state to assure that, when making any orders regarding child custody or visitation, the court’s primary concern is the child’s health, safety and welfare. (FC § 3020 (a).. State policy also directs the court to assure that children have frequent and continuing contact with both parents and to encourage parents to share the rights and responsibilities of child rearing. (FC § 3020 (b).. Preservation of parental relationships is in the best interest of the child and the parent. (Camacho v. Camacho (1985) 173 Cal.App.3d 214, 218-219.)

Moreover, the relationship between parent and child is so basic to the human equation that it is recognized as a fundamental right to be protected by all society. Accordingly, interference with that right is justified only by compelling necessity. (Hoversten v. Superior Court (1999) 74 Cal.App.4th 636, 641.). Thus, an affirmative showing of harm or likely harm to the child is necessary in order to restrict parental visitation. (Irmo Birdsall (1988) 197 Cal.App.3d 1024, 1030.)

The trial court’s justification for modifying the 2008 custody and visitation order was the finding that Sarah violated the court’s order by permitting her mother Rebecca to have contact with the children. But substantial evidence does not support this essential finding since there was no solid evidence that Rebecca had contact with the children. Basing a finding on a suspicion or hunch is not proof.

“Further, the court’s order is dramatically inconsistent with the coordinator’s recommendations that Sarah have supervised visitation with Sarah for six to eight hours, three or four times per week. She also said the fathers were not mature enough to decide on behalf of their sons the nature and extent of the contact they should have with their mother but nevertheless, the court left the decision as to additional visitation in their hands.

The trial judge’s apparent bias warrants reassignment

“[T]he actions of a judge must not only be impartial, but they must be seen as impartial by a reasonable person.&rdquo. (Irmo Tharp (2010) 188 Cal.App.4th 1295, 1328.)

Here, the CA said the trial judge appeared predisposed to rule against Sarah. The panel cited a comment by the court that accused Sarah of engaging in a “pattern of grift and deception” and expressed doubt about her capacity to change. The CA said there was no evidence to support this disparaging description of Sarah.

This, the CA concluded, would lead a reasonable person to believe the judge was inclined to rule against Sarah without regard to the evidence and to conclude that the judge was biased against her. The CA also concluded that the severity of the restriction on Sarah’s visitation under these circumstances suggested unfairness. “The appearance of fairness will be achieved only if this case is reassigned to another judicial officer.”

Irmo Vitt - Unpublished opinion of District 2, Division 5 (Filed September 13, 2011)

An award of temporary spousal support is not warranted if the marital status quo is maintained by a party's current income.

Jennifer and Dennis married in 2001 and separated in either 2005 or 2007.

Jennifer said that Dennis’ earnings during the marriage allowed her to work only part time. She alleged that she and Dennis spent many weekends at NASCAR races, took vacations to Las Vegas a few times per year and visited Ireland for two weeks. She claimed they purchased a custom motorcycle, new cars, a flat screen television and other household amenities. Jennifer said that she now requires assistance from her parents to meet her monthly expenses. Jennifer argued she required temporary support to enable her to attain job security by returning to college for a BA and then to earn a nursing credential.

Jennifer listed monthly expenses of $2,200 and said her “boyfriend/roommate” Trevor paid half the rent and utilities and some of the household expenses. In total, Jennifer said Trevor and her parents paid approximately $1,000 per month of her monthly expenses. Jennifer’s attorney asserted that based upon Dennis’s current earnings, temporary spousal support of $5,054 per month was warranted.

Dennis opposed the request. He said was living in the same 1,000 square-foot house he rented for nine years. Dennis asserted he and Jennifer had only one car, no savings, traveled very little, and had few possessions. Their furniture consisted of used items and things purchased at garage sales. Jennifer’s parents paid for their trip to Ireland. Dennis said they went to Las Vegas together only four times and to a NASCAR race only once.

Dennis pointed out that in 2002, Jennifer became a licensed esthetician. After working in a few spas for experience, in 2004 she entered into a partnership with her parents to open her own business. She built a solid client base, makes her own income, receives good tips, and works when she wants to.

In 2006, Jennifer moved into her own apartment. Dennis paid the first and last month’s rent, as well as a security deposit. Dennis agreed to pay for a car and car insurance until their divorce was completed. He paid their community debts. Dennis helped Jennifer make loan payments on her student loan while she was adjusting to living on her own. He also paid her rent for a period of time so that she could build up a financial cushion. Based on financial documents, Dennis calculated that he had paid the following amounts to Jennifer or for her benefit. $28,219.52 in 2006; $18,638.18 in 2007; and $10,821.38 in 2008.

Dennis’ I&E revealed his current average monthly gross income was $14,894 and his monthly expenses wer. $8,449.

The trial court found Jennifer’s cohabitant helped meet her recurring expenses and that after separation, Dennis paid a substantial amount of money to maintain the status quo. The court also found Jennifer failed to show the marital standard of living was substantially higher than the standard of living that she currently enjoyed. The court concluded Jennifer failed to show a need for support and denied her request for temporary spousal support.

Jennifer appealed. AFFIRMED

The trial court may award temporary spousal support in “ ‘any amount’ based on the party’s need and the other party’s ability to pay.&rdquo. (Irmo Wittgrove (2004) 120 Cal.App.4th 1317, 1327; Fam. Code, § 3600.. Temporary spousal support is to maintain the living conditions and standards of the parties in as close to the status quo position as possible pending trial and the division of their assets and obligations. (Irmo Murray (2002) 101 Cal.App.4th 581, 594.. The FC §4320 factors need not be considered. (Irmo MacManus (2010) 182 Cal.App.4th 330, 335.. In setting temporary spousal support, the court must consider the “big picture,” including the parties’ assets and the income available for support in light of the marriage standard of living.

Here, Jennifer’s request for temporary spousal support was not supported by a demonstration of the basis for her need. The rent she paid for her apartment and the rent Dennis paid for the residence the parties shared during the marriage was about the same, showing that Jennifer could afford housing comparable to the parties’ living arrangements during marriage. Her need was undeniable decreased by the fact that her cohabitant pays about one half of their monthly expenses.

The CA noted parties shared a car during the marriage and Jennifer has a newer computer now than the parties owned during their marriage. There was no evidence that Jennifer does not have or that she could not afford a television or a personal trainer. There was no evidence as to how often Jennifer and Dennis dined out during their marriage or how much they spent on groceries. Thus Jennifer failed to show that she could not dine out, rent comparable accommodations, or otherwise enjoy the standard of living that she and Dennis enjoyed during their marriage.

The lesson of this opinion is that Dennis’ significantly higher earnings do not mandate an award of formula temporary spousal support.

Irmo Denny - Unpublished opinion of District 1, Division 1 (Filed September 15, 2011)

A ruling on a CCP § 473(b) motion must demonstrate the court exercised its discretion.

In 1979, an interlocutory default judgment of dissolution was entered by a California court that granted custody of the parties’ two children to Wife, and ordered Husband to pay to Wife child support in the amount of $150 per month per child and spousal support in the amount of $150 per month. In 1981, DCSS filed a support enforcement petition in Nevada.

Thereafter, Husband consistently made support payments to Wife through Nevada and DCSS, although in May of 1990, DCSS asserted Husband’s arrearage wa. $25,455. In 1991, the Nevada District Court ordered Husband to pay child support in the amount of $300 per month and $100 per month on his arrears.

In 2002, after the children were no longer minors, the Nevada District Court filed a “Release of Judgment” and notified the DCSS that the balance owed by Husband “was paid in full.&rdquo. DCSS argued Husband’s support was not paid in full because the Nevada District Court failed to include interest on the missed installments but the Nevada District Court declined to re-open the case because DCSS could not produce a judgment establishing the amount of Husband’s arrearage.

DCSS then filed a motion to reduce the arrears to judgment stating the amount of Husband’s arrears was $58,000. Husband contested the amount. The case then languished until 2006 when the commissioner assigned to the case questioned the validity of the 1979 default dissolution judgment on the ground that the amended petition was not properly served. After another hearing in November 2006, the trial court denied the DCSS motion and ordered it to “halt all collection activities.”

Nevertheless, in 2008 DCSS pursued collection demands by intercepting Husband’s tax refunds and his federal economic stimulus check. In 2010, Husband moved for a clarification of the trial court’s earlier ruling denying DCSS’s motion to reduce the arrears to judgment and releasing him from liability for arrears. His motion was set for hearing before a court commissioner other than the one who made the earlier ruling. Husband requested, and the commissioner agreed to ask DCSS to arrange to transfer the motion to his calendar.

DCSS opposed Husband’s motion saying the original California order was controlling and asked for an order that the Nevada release was void. Husband’s attorney did not receive the Department’s request before the scheduled hearing. When the matter came on for hearing, neither Husband nor his counsel was present. Husband’s motion was denied and the Department’s motion was granted.

Husband then filed a motion to set aside the order. Husband’s attorney’s declaration stated that she “inadvertently missed” the hearing date because she relied on DCSS to contact her about transferring the motion to the department of the commissioner who made the order that required clarification. She also said that a “family emergency” caused additional stress and that she inadvertently failed to calendar the motion. The application for relief was denied with the cryptic statement that the “court will not reconsider prior orders.”

Husband appealed. REVERSED

CCP § 473 (b) allows relief from a judgment, dismissal, order, or other proceeding taken against a party or his or her attorney on a showing of mistake, inadvertence, surprise, or excusable neglect. It requires a default judgment or dismissal to be vacated if a party’s attorney attests to his or her mistake, inadvertence, surprise or neglect unless the court finds that the adverse outcome was not caused by the attorney’s error. The application for relief must be made within a “reasonable time” within six months after the party becomes aware that a default has been entered against it.

Under the mandatory provision of CCP § 473(b), a party must be relieved whether or not the attorney’s neglect is excusable.

Under the discretionary provision of CCP § 473(b), a party must prove both (1) diligence in making the motion after discovering his or her own mistake, and (2) a satisfactory excuse for the occurrence of that mistake. The mistake or neglect is excusable if “a reasonably prudent person under the same or similar circumstances” might have made the same error.&rdquo. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 681-682.

The CA said Husband was entitled to discretionary relief from the failure of his attorney to appear at the hearing to clarify the trial court’s prior ruling and to extinguish his arrears. “First, [the trial court] failed to even entertain any discretion in ruling on Husband’s section 473 motion. The articulated steadfast refusal to ‘reconsider prior orders’ suggests … a glaring lack of proper attention to the substance of the motion. . Husband presented adequate grounds to justify relief [and the] motion was brought diligently. . [W]e also find that the failure of counsel to appear was the result of excusable mistake and neglect. Based on her communication with [the trial court] Husband’s counsel understandably believed the motion would be continued.”

The CA said, “the trial court’s discretion is not unlimited and must … not impede or defeat the ends of substantial justice.&rdquo. [¶. Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. In such situations ‘very slight evidence will be required to justify a court in setting aside the default.&rsquo. [¶. Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. [Citations.]”

The order denying Husband’s CCP § 473 motion was reversed.

Irmo Bauer - Unpublished opinion of District 4, Division 3 (Filed September 16, 2011)

It is an abuse of discretion to condition custody on a parent’s adherence to restrictions on “sexual visitors.”

Father and Mother married in 1990 and separated in 2007. They have two sons. A special master was appointed to make recommendations as to parenting disagreements. Mother informed the court the children were hesitant to visit Father “in the presence of his new lover and her two children.”

In 2008, the trial court ruled the children would spend alternating weekends with Father as well as “such other times as the parties may mutually agree.&rdquo. In August 2008, the special master suggested “[Father] not spend the night with his new lover when the boys were with him, and suggested that contact between the children and his companion be limited. In September, the evaluator recommended that their son Chad meet with a therapist to help with his “feelings and anger.”

When the disputes about custody and parenting were tried, Father admitted there were conflicts between his companion and the other son Kyle. He conceded this upset Kyle and acknowledged the special master’s recommendation of no contact between the children and his companion and that he agreed to limit contact during weekend visits.

Mother’s written argument explained the various problems that required them to return to the parenting special master for assistance.. A parenting compromise was negotiated that included a condition that Father’s “new girlfriend be present for very brief periods of time only and that she not spend the night.&rdquo. Mother said their parenting disagreements persisted because Father ignored the children’s requests, the therapist’s suggestions, and her wishes.

Mother’s examples included an occasion when Kyle was left to babysit the girlfriend’s children. He said he felt like a stranger in Father’s home, and that he craved for his father’s attention. Father so frequently ignored Kyle’s concerns that Kyle began to refuse visits with his Father. Mother claimed Chad was experiencing similar problems.

The court granted the parties joint legal custody, and gave Mother sole physical custody. Father was awarded visitation that did not permit any overnight visits as long as he was residing with but unmarried to a person “of the opposite sex.&rdquo. Overnight visits were permitted if Father was alone or married. The court awarded child and spousal support dating back to the end of 2007 to the present.

Father appealed. REVERSED IN PART

Courts must fashion custody and visitation orders to promote two important public policies; viz., (1) the child’s health, safety and welfare; and (2) frequent and continuing contact with both parents.&rdquo. (FC § 3020.)

A court may not base its decision upon “disapproval of the morals or other personal characteristics of a parent that do not harm the child.&rdquo. (Irmo Wellman (1980) 104 Cal.App.3d 992, 998.)For example, courts have held a parent’s homosexuality or religious practices or beliefs only limits that persons access to the child if there is a clear showing the parent’s conduct is detrimental to the child.&rdquo. (Birdsall at pp. 1030-1031.)

Thus a parent’s alleged adulterous relationship is irrelevant to a custody determination. (Slayton at pp. 661-662.. “Similarly, a court abuses its discretion in conditioning custody on the parents’ adhering to restrictions about ‘sexual visitors’ where the only justification is the court’s disapproval of non-marital relationships. (Wellman at p. 999 and see Irmo Russo (1971) 21 Cal.App.3d 72, 88-89.)

Here, the CA said the court’s visitation order was supported by substantial evidence that Father and his girlfriend were having a detrimental effect upon the children’s welfare. It nevertheless reversed the order “because, on its face, the order improperly suggests visitation is limited based on Father’s ‘marital status’ per se rather than the welfare of the children. The wording of the order must be clarified to show the basis of the court’s order and reflect appropriate factors.”

The CA observed that the wording of the order was perplexing. While the court at first expressly and clearly referred to the children’s welfare when it granted Mother sole physical custody, it did not mention this factor at all in scheduling Father’s visitation. Specifically, the court ruled that so long as Father lived “with an adult of the opposite sex to whom he is not married” he would not have any overnight visitation. Although the CA said this limited visitation schedule reflected a history of harm caused when Father had the children for overnight visits and insisted they also spend time with his non-marital partner.

The CA was not as charitable however, with the trial court’s order that Father would have overnight visits and could share holidays and summer months as soon as he “resides alone or with a spouse.&rdquo. “By its plain meaning, this schedule could go into effect if Father married his companion, regardless of the children’s best interests.&rdquo. The CA reasoned that if Father and his friend detrimentally affected the children’s welfare during overnight visits, it was hard to see how this would be remedied by marriage.

The CA instructed the trial court to reconsider custody and visitation and to recalculate child support if the parents’ timeshare changes with the new orders.

Irmo Franklin - Unpublished opinion of District 2, Division 3 (Filed September 19, 2011

Husband’s testimony alone is not enough to trace his separate property interest to subsequently purchased community assets.

In 1994, before the parties married, Husband purchased a property in London (the Spencer property) for about £211,000. Although he produced no documents to support his claim, Husband said the purchase price was paid with £61,710 in cash and a £150,000 mortgage. Husband also claimed that before marriage, he made £62,781 in improvements and reduced the principal balance of the mortgage by £3,703.

Down payment on the Oporto Property

In 1999, after the parties married, Husband conveyed the Spencer property to himself and Wife as joint tenants. They then refinanced for about £300,000 and deposited about £150,000 ($225000) from the proceeds of their new loan in a joint account.

Husband testified that the source of the money for a $185,000 down payment on their Oporto residence came from the proceeds derived from refinancing the Spencer property. Husband’s reimbursement claim for this amount was premised upon his contention that when they purchased the residence, community assets in the joint account were not sufficient to make the down payment.

But Husband produced no records from the parties’ joint account to prove this point.

Down Payment and Improvements to the Ballina Property

Husband and Wife sold the Oporto property and used the funds for a down payment on the Ballina property. Husband testified that the funds derived from the sale of Oporto were also insufficient to cover the down payment, but he did not produce bank records to support his contention.

Improvements to the Ballina property were paid for from funds derived from the settlement of a lawsuit over the Oporto property, from a second refinancing of the Spencer property and a $100,000 HELOC secured by the Ballina property. Husband’s list of the expenditures on the improvements totaled about $550,000 but his compilation said nothing about where the money for the improvements came from.

Sale of Spencer Property and Down Payment for the Mammoth Property

In 2002, Husband and Wife sold the Spencer property for £595,000, netting £265,000 before taxes. Husband testified that all of the proceeds were deposited in the parties’ joint account and were used to make improvements on the Ballina property and to make a $103,000 down payment for the Mammoth property. No bank records were produced to prove his point.

Husband’s Expert

Husband employed an expert to testify about his equity in the Spencer property when it was transmuted to community property and to speak to the source of the money used to purchase and improve the Ballina property. The expert’s several calculations of Husband’s separate property equity in the Spencer property at the time the property ranged from £163,000 ($245,000) to more than £250,000 ($375,000). They were all based upon either Husband’s estimate of its value or the results of the expert’s internet search.

As to Husband’s FC § 2640 reimbursement claim, the expert did not trace any separate property contribution by Husband to a community asset that was held at the time of dissolution. The expert simply “identified where the separate property monies could be.&rdquo. Based upon closing statements from Oporto and Mammoth, she concluded that there was “hard cash of $311,000. And I know that he has at a minimum a $245,000 § 2640 reimbursement.”

Not satisfied, Husband’s expert later revised her reimbursement analysis, claiming the Oporto down payment was actually irrelevant and that the real question was whether Husband’s separate property interest in the Spencer property could be traced after it was sold in 2002 to improvements to the Ballina property and to the purchase of the Mammoth property. Based upon Husband’s spreadsheets, the expert said $100,000 of the improvements to the Ballina property and the down payment for the Mammoth property came directly from the sale of the Spencer property and was Husband’s separate property.

The Trial Court’s Findings

The trial court rejected the expert’s various analyses and limited Husband’s separate property interest in the Spencer property to his down payment of £61,710, the premarital improvements of £62,781 and a principal balance reduction before marriage of £3,703; a total of £128,194.

The trial court’s conclusions were not based upon any banking or other records that traced the expenditure of these separate funds into or out of any given account. The trial court found Husband’s testimony to be credible and speculated that documentary evidence was “likely destroyed or lost through inadvertence, mistake or neglect.”

The trial court found Husband’s separate property had been adequately traced to the down payment on the Oporto property and then to the Ballina property. It further concluded that a separate property interest remained in the Spencer property after it was sold and that a portion of the proceeds were adequately traced to the down payment for the Mammoth property.

Wife appealed. REVERSED

The Down Payment on Oporto

The CA acknowledged that Husband was entitled to reimbursement for any separate property contributions to a property acquired for the community estate, which includes down payments, payments for improvements, and payments that reduce the principal of the loan. (FC § 2640 (a), (b)). But reimbursement is due if, and only if, they are traced to a separate property source. (Irmo Braud (1996) 45 Cal.App.4th 797, 822.. The CA concluded Husband failed to meet his tracing burden.

Generally, where a family residence is converted to joint tenancy during marriage, the measure of reimbursement due to the spouse who contributes his or her equity at the time is the fair value of the residence at the time of conversion, less outstanding encumbrances and any non-gift community property contributions to principal before conversion. (Irmo Walrath (1998) 17 Cal.4th 907, 920-921..

Moreover, Walrath establishes that a FC § 2640 reimbursement claim is not limited to the specific community property to which the separate property was originally contributed. It also applies to any other community property that is subsequently acquired from the proceeds of the initial property, and to which the separate property contribution can be traced. (Walrath at pp. 918-919.)

Here, the trial court assumed that the £150,000 withdrawn from the Spencer property when it was refinanced was Husband’s separate property and that these separate property funds were commingled with community funds in the couple’s account. First, commingling does not alter the status of the separate property if the funds can be traced to a separate property source. (Irmo Cochran (2001) 87 Cal.App.4th 1050, 1057-1058.. The spouse who claims the separate property interest has the burden of proving that, of the money in the account, it was the separate property funds that were used to purchase the community asset. Without this showing, the property is characterized as community property because it is presumed to be so since it was acquired during the marriage. (FC § 760.)

The CA said that while the general rule is that the testimony of a single witness is sufficient to support a finding, there is a heightened evidentiary standard to rebut the presumption that property acquired during marriage is presumed to be community property. (Irmo Mix (1975) 14 Cal.3d 604, 610-611, 613-614.. Where funds are commingled, there must be more than the spouse’s testimony that he or she intended to use the separate property funds in the commingled account for the expenditure. (Mix at p. 614.)

Tracing can be either “direct” or by an analysis of “family expenses.&rdquo. But both require a record. Under the “direct tracing” method, the disputed asset is traced to the withdrawal of separate property funds from the commingled account. “This method requires specific records reconstructing each separate and community property deposit, and each separate and community property payment as it occurs.&rdquo. (Braud at p. 823.). Using the “family expense” method, the records must show the community income was exhausted by family expenses, leaving only separate property funds available to make the payments. (Cochran at pp. 1058, 1059.)

Tracing from the Spencer Property to the Ballina Property

Husband claimed a separate property interest of £128,194 in the Spencer property before transmutation. When Husband and Wife secured a new mortgage on the Spencer property of about $340,000, the CA said they presumably paid off the existing mortgage of £150,000 and “took out” about £150,000 (more than his initial separate property investment) in anticipation of their move to California.

Even so, the CA said “there was no credible evidence of the fair market value of the Spencer property or of Husband’s equity in it when it was transmuted to community property and then refinanced.&rdquo. The CA acknowledged there was likely at least £150,000 of equity in the property when it was refinanced but said there was no way to “fill the evidentiary gap giving rise to this dispute; that is, what, if any, of Husband’s separate property went into the joint account and was used for the Oporto property down payment.&rdquo. The CA noted there were at least three possibilities but that “the absence of sufficient tracing evidence to establish, what, if any separate property was used for the down payment to purchase the Oporto property or remained in the Spencer property made it impossible to establish Husband’s reimbursement claim. (See Irmo Geraci (2006) 144 Cal.App.4th 1278, 1287-1288.)”

The CA said the trial court used the family expense method but said the only evidence of tracing was Husband’s testimony that related to the couple’s earnings not the family’s expenses. “There was no evidence presented stating the balance in joint account before the £150,000 deposit, no evidence that the entire amount deposited was Husband’s separate property, and no evidence of the community income that was deposited in that account or the amounts withdrawn from the commingled account to cover family living expenses.&rdquo. The absence of any statements from the joint account doomed Husband’s attempt under the family expense method of tracing to show community assets were depleted at the time the particular asset was acquired. (Braud at pp. 824-825; Mix at pp. 612-614.)

Finally, the CA rejected Husband’s contention that he should be excused from producing documentary evidence tracing his separate property interest because through no fault of his own, his detailed records were destroyed. (See Irmo Higinbotham (1988) 203 Cal.App.3d 322, 330.. “Husband had access to all documents pertaining to the purchase of the Oporto property [but] made no attempt to obtain copies of bank records from the couple’s [joint] account.”

Irmo Afar - Unpublished opinion of District 3 (Filed September 19, 2011)

An increased timeshare and the completion of a period of therapeutic visitation is a change of circumstance that warrants new custody and visitation orders.

A March 2005 judgment awarded Mother sole legal and physical custody of the parties’ two boys. Mother lived in Philadelphia and Father lived in California. Father was permitted therapeutic visitation with the boys until the therapist determined that he was ready to see them by himself.

In 2007, Father moved to modify the custody order. In 2008, a court-appointed custody evaluator recommended that unsupervised parenting time with Father begin immediately. The 2009 trial on Father’s motion to change custody resulted in an order that Father and the boys have therapeutic visitation..

In December 2009, the therapist reported his meetings with the family and reported the boys were friendly, there was no hostility between Father and the boys, and that the children expressed a desire for more time with their father.

In January 2010, the trial court ordered the parties to have joint legal custody, and awarded mother primary physical custody. The court found there was no evidence that the boys’ health, safety or welfare would be jeopardized by a joint legal custody order but that Mother would use a sole legal custody order as a sword against Father.

Mother appealed. AFFIRMED

Mother argued the trial court erred by modifying a permanent custody order without a showing of changed circumstances. The CA disagreed.

The 2005 judgment on reserved issues gave Mother sole legal and physical custody of the minor children. The CA treated this judgment as a final judicial custody determination that could only be modified if “changed circumstances” indicated that a different custody arrangement would be in the children’s best interest. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 256; Irmo Brown & Yana (2006) 37 Cal.4th 947, 956.. Once a court has entered a final custody order reflecting the child’s best interest, the paramount need for continuity and stability weighs in favor of maintaining that custody arrangement. (Brown & Yana at pp. 955-956.)

The CA said the record amply supported the trial court’s finding of changed circumstances. “Previously the boys had no contact with father; the children now visit father two to three days a month in Southern California. Since April of 2009, the boys and father have been through extensive counseling as well as therapeutic visits. Moreover the trial court concluded that if sole legal custody were awarded to Mother, she would use it “as a sword against Father” and that this was not be in the best interest of the children.

The CA also rejected Mother’s argument that the trial court ignored the recommendations of its own experts. Trial courts are not bound by the recommendations of their experts. FC § 3183 (a) clearly states a mediator may make a “recommendation” regarding custody and visitation but that it is simply “evidence to be weighed with all other evidence and it is the court, not the mediator, that bears the responsibility to decide custody.&rdquo. (Irmo Rosson (1986) 178 Cal.App.3d 1094, 1104.)

Irmo Diloje & Dumitrescu - Unpublished opinion of District 4, Division 2 (Filed September 19, 2011)

Assets held in an IRA are exempt from execution only to the extent necessary to provide for the support of the judgment debtor and his spouse and dependents upon retirement.

In 2008, Husband petitioned for dissolution and Wife responded with a request for temporary spousal support, attorney fees and funds to conduct an accounting of the community’s interest in real estate held in Husband’s name.

Husband opposed Wife’s request for support and attorney fees, saying he lost money during the four years he and Wife were married and that his personal assets and bank accounts were depleted. His said his only asset was a Roth IRA that held real estate valued at $1.25 million.

Following a hearing in 2008, the trial court found Husband’s I&E was not credible and imputed an income to Husband that was equal to his listed expenses. Husband was ordered to pay $2,428 per month in temporary spousal support, $10,000 in attorney fees and $5,000 for forensic accounting fees.

In 2009, Wife moved to enforce the support and attorney fee order asking the court to order Husband to liquidate some of the 99 real properties he owned. Over Husband’s objection, the trial court appointed a receiver and directed him to review Husband’s real estate portfolio and to report about whether any properties should be refinanced or sold.

In 2009, the receiver reported his findings and recommendations and the trial court ordered the sale of seven of Husband’s properties. In November 2009, the receiver filed an application for an order confirming the sale of two undeveloped properties for a total of $60,000, removing five properties from the receivership and adding five other properties. Husband objected, contending that relief could only be granted upon noticed motion and that the real estate assets were part of an IRA that was exempt from execution under C.C.P. § 704.115.

The court granted the receiver’s request and confirmed the sale. The receiver was directed to use $20,000 of sale proceeds to pay the Receiver’s bond premium, $30,000 to Wife for spousal support and the balance to pay the receiver’s administrative fees.
Husband appealed. AFFIRMED

Exempt and Conditionally Exempt Assets

Under California law assets held in private retirement plans are, absent certain exceptions, fully exempt from execution, both before and after their distribution to the judgment debtor. (§ 704.115 (b).. In contrast, assets held in IRA are exempt from execution “only to the extent necessary to provide for the support of the judgment debtor when the judgment debtor retires and for the spouse and dependents of the judgment debtor. (§ 704.115 (e); see McMullen v. Haycock (2007) 147 Cal.App.4th 753, 755-756.)

Even when property is deemed exempt, however, it may still be used in an appropriate circumstance to satisfy a judgment for child, family or spousal support. (§ 703.070 (c).)

The Properties Sold Were Not Exempt

The question of whether the properties in Husband’s Roth IRA were exempt from execution was the focus of the hearing. The court considered all of Husband’s resources, including the 97 other properties in his investment portfolio, and found the sale of the properties for $60,000—approximately 3% of his portfolio—would not substantially impair his ability to support himself in retirement. Thus the properties were not exempt from execution. (§704.115 (e).)

Husband insisted the trial court was required to consider some evidence of how much money was needed to support Husband in his retirement, preferably in the form of actuarial tables. The CA said that typically, such evidence is provided in the form of a financial statement listing all sources of earnings and other income, assets and outstanding obligations but here, the only financial statement in the record was Husband’s I&E - a document dismissed by the court as not credible. To the extent any additional evidence was warranted, it was Husband’s burden to provide it. (See § 703.580 (b) [person claiming exemption bears burden of proof].)

Irmo Shapiro - Unpublished opinion of District 2, Division 7 (Filed September 20, 2011)

A non-modifiable spousal support judgment can be modified and thereafter be unmodifiable.

A 1997 stipulated judgment of dissolution requires Husband to pay taxable spousal support of $10,500 per month to Wife. It also requires other support payments by Husband to third persons for Wife’s benefit that were not to be taxable to her. The latter payments were to terminate no later than October 2009. Both paragraphs were expressly non-modifiable.

Nevertheless, in 1997 the parties filed OSC’s to modify the judgment. In January 1998, Wife filed another OSC that sought modification of the non-taxable support provisions of the judgment. She asked that the payments Husband was required to make to third parties be made instead directly to her. Husband’s response asked the court to eliminate most of his support based on an asserted change in his income. Neither party invoked the non-modifiable provisions of the judgment.

Following a hearing in 1998, the trial court found that the parties had settled their disputes about Husband’s arrearages, offsets and reimbursements and also found that they reached an agreement to modify the support provisions of the 1997 judgment. Based on their stipulation, the trial court relieved Husband of most of his obligation to make support payments to third persons and increased his spousal support from $10,500 per month to $14,000 per month. The 1998 order specifically states that all other spousal support provisions were to remain unchanged, including the term that makes it non-modifiable.

In February 2010, Husband filed a motion seeking termination of the $3,500 additional spousal support and other relief. Husband explained that he believed that the increase in his spousal support obligation would terminate as originally provided in the 1997 judgment no later than October 2009.

Following a hearing, the trial court found that the 1998 order modifying the 1997 judgment was not ambiguous, that the increase in Husband’s spousal support obligation did not terminate in 2009, and that it was not modifiable now.

Husband appealed. AFFIRMED

The Order Was Not Ambiguous

Husband argued the 1998 modification of the judgment contained a latent ambiguity with respect to the termination date. He asserted that because the 1998 order changed only the payee - Wife was paid rather than third parties - the termination date did not change. The CA disagreed.

The CA concluded the 1998 modification was not susceptible to the interpretation advanced by Husband. The trial court did not leave Husband’s additional payment in the portion of the judgment that relates to the non-taxable support, thus changing only the payee. It instead increased Husband’s spousal support obligation “in lieu of” the previously ordered amount.

The Stipulated Judgment Has Not Become Modifiable

Husband also argued that the trial court erred in concluding the 1997 judgment continued to be non-modifiable as to spousal support. He asserted that since the 1998 modification changed the judgment by eliminating the termination date of the payments that were previously made to third parties, Wife waived all of the non-modification conditions. The CA rejected the argument.

The CA said waiver is the intentional relinquishment of a known right or “‘conduct so inconsistent with the intent to enforce the right in question as to induce a reasonable belief that it has been relinquished.’&rdquo. (Kay v. Kay (1961) 188 Cal.App.2d 214, 218.. Here, the CA pointed out that neither Husband nor Wife invoked the non-modification provisions in the prior proceedings in 1997 and 1998. And, in its 1998 order, the trial court made it clear that the parties stipulated to the change in the amount of spousal support but that the non-modification language remained unchanged.

The CA said that if Husband believed that the court’s order did not reflect the parties’ agreement or was otherwise erroneous, he was obligated to object. Having failed to object, Husband has forfeited the right to assert that the 1998 order was improperly entered.

As a final thought, the CA noted, “In family law matters, we encourage the parties to resolve their disputes and to avoid unnecessary litigation. Reading the non-modification language here not only to preclude the court from imposing a change on the parties, contrary to their agreement, but also to preclude the parties themselves from mutually consenting to such a change, would cause more litigation and less opportunity for amicable resolution.”

Irmo Darlan - Unpublished opinion of District 4, Division 3 (Filed September 22, 2011)

1. A private retirement account is exempt from execution only if it is established by a private employer - not the individual acting on his or her own.
2. An IRA may be exempt from execution to recover unpaid support but only to the extent necessary to provide for the support of the judgment debtor.

Wife obtained a writ of execution to enforce a provision in a dissolution judgment awarding her an equalizing payment of $140,000. The sheriff’s office notified Ameriprise that it was levying “any and all financial accounts in Husband’s name.

Citing C.C.P. §§ 704.080 and 704.115, Husband filed a claim of exemption seeking to exempt the accounts saying they were assets in “a private retirement plan.&rdquo. A supplemental pleading averred he has two dependents, earns $0, his only asset is the IRA with a value of $160,000 and that his obligations exceed $95,000. A letter from Ameriprise stated Husband’s annuity account “is a Rollover IRA retirement account.”

The trial court denied Husband’s claim of exemption because he failed to reveal who controlled the Ameriprise account and because he failed to show a third party, an employer, or a union established it. The court also noted the financial statement failed to disclose his dependents’ earnings, assets, and obligations.

Wife’s second writ of execution was to enforce Husband’s unpaid child and spousal support. The sheriff again notified Ameriprise, this time in an amount just over $120,000.

Husband filed another claim of exemption invoking C.C.P. §§ 704.080 and 704.115. He again stated his Ameriprise retirement plan was needed to support himself and his dependents when he retired. Husband also submitted a financial statement claiming he and his dependents earned $3,500 per month and that their assets were limited to a small amount of cash, tangible personal property and $158,000 in an IRA account. Husband claimed his monthly expenses exceeded $6,700 and his family’s total obligations exceeded $80,000.

The court denied this claim as well. The trial court took judicial notice of a declaration filed in October 2007, where Husband stated he had approximately $750,000 in real and personal property. Husband explained the omission by saying his property “values have declined” such that “he had no property with equity.”

Husband appealed. AFFIRMED

The CA rejected Husband’s claim his Ameriprise account is exempt pursuant to C.C.P. § 704.115 (b). This provision exempts from levy amounts held by a private retirement plan for the payment of benefits as an annuity, pension, or retirement allowance.”

First, this provision applies only to retirement plans set up by private employers, not by individuals acting on their own. (In re Simpson (9th Cir. 2009) 557 F.3rd 1010, 1018.. Second, the plan must be actually “used and designed for retirement purposes” because the amount exemptible in a private retirement plan is unlimited instead of being “limited to what is necessary to support a debtor.&rdquo. The CA reasoned that without the “private employer” and “designed and used for retirement” requirements, debtors could shield their every penny by unilaterally dubbing their bank accounts “retirement plans.”

An IRA may also be exempt but “only to the extent necessary to provide for the support of the judgment debtor when the judgment debtor retires and for the support of the spouse and dependents of the judgment debtor taking into account all resources that are likely to be available for the support of the judgment debtor when the judgment debtor retires.&rdquo. To meet this condition, the claimant must offer a verified financial statement that must include all sources of income, a list of assets, and all outstanding obligations for the judgment debtor and his or her spouse and dependents. (Schwartzman v. Wilshinsky (1996) 50 Cal.App.4th 619, 626, 627; accord § 703.530 (b)(3)-(5).)

The CA said Husband offered almost no evidence on the account’s design or use. He did not show who created the account, how it was funded, who controlled or managed it, what deposits or withdrawals have been or will be made, or how the funds will be used in retirement. The letter from Ameriprise was not authenticated and does not describe the account meaningfully; it simply labels it. “A plan is not ‘exempt merely by virtue of its name.’". (In re Bloom (9th Cir. 1988) 839 F.2d 1376, 1378..

Similarly, Husband also failed to show his Ameriprise account was exempt as an IRA. (§ 704.115 (a)(3).. His incomplete financial statement failed to show the extent to which exempting the Ameriprise account was necessary. Husband conceded he omitted assets from the financial statement — a Laguna Niguel home worth $1.2 million and six rental condominiums. Although he claimed the home had a “$1,750,000 loan on it” and the condominiums were “upside down,” he failed to disclose any encumbrances on his financial statement. Husband’s claim that he owed $60,000 on credit cards and $40,000 to his former attorney was inconsistent with the financial statement that showed he owed less than $52,000 to various banks.

The CA said that in short, Husband failed to list all assets and their value as well as a complete list of all outstanding obligations. “While the statute should “be construed, so far as practicable,” to his benefit (Schwartzman at p. 630), it cannot be bent beyond its breaking point.”

Irmo Dimitropoulos - Unpublished opinion of District 4, Division 3 (Filed September 28, 2011)

A stipulated judgment that provides father with a 33% timeshare is not a joint physical custody arrangement that avoids the requirement of showing a detriment before the custody orders can be re-evaluated.

A 2009 stipulated judgment provides that Mother and Father are to share legal custody of their daughter and that Father is to parent her on alternate weekends from Friday after school to Monday morning when she is returned to school. He also parented her on every Wednesday from after school to the following morning. They agreed to a 50/50 arrangement during the summer months and holiday periods.

In 2010 after Mother moved with her boyfriend and their daughter to Glendale, Father filed an OSC seeking to keep their daughter enrolled in school in Buena Park. Mother resisted the relief requested, saying she was now married her boyfriend and wished to enroll their daughter in an elementary school near her home. She also noted she was pregnant and could no longer make the drive to Buena Park.

A child custody investigator recommended continuing the existing custody arrangement. Following an evidentiary hearing, the trial court found Mother’s “new home is less than an hour from Father’s home and that the distance will not substantially interfere with the father-child relationship.&rdquo. The court also found the daughter “does well in school and has adjusted to the current custodial arrangement,” which “will not be significantly changed by the move.&rdquo. It also found the daughter “is looking forward to a new sibling and that the bonding to the new sibling is ‘of primary importance and very special psychologically for her mental health.”

The trial court noted the parties’ agreement that Mother was the child’s primary parent and, citing FC § 7501(a) and Irmo Burgess (1996) 13 Cal.4th 25, concluded she had a “presumptive right” to move with the child. The trial court also found Father failed to show Mother’s relocation was “detrimental to the child” and that nothing warranted reconsideration of the existing custodial arrangement. Alternatively, the trial court said that even assuming a showing of changed circumstances was not required, applying the “best interests” standard produced the same outcome.

The trial court denied Father’s request for sole legal custody, but modified the parenting plan to provide him with eight consecutive weeks of visitation over the summer break. Father appealed. AFFIRMED

The CA found no error in the trial court’s alternative rulings and said the proper standard to be applied was to require Father to show detriment before readdressing the parenting plan.

The stipulated judgment awarded physical custody to Mother “at all times not specifically designated to” Father. The CA said, “This is not joint physical custody; the daughter was not shuttled back and forth between the parties. (Cf., Irmo Whealon (1997) 53 Cal.App.4th 132, 142.)&rdquo. Father’s parenting time was, as in Whealon, simply “generous visitation rights” that the CA calculated to be about 33%. Moreover, Father conceded at trial that Mother “is the primary custodial parent.&rdquo.

Thus, because Father did not share joint physical custody of the daughter, Mother had the presumptive right to move and Father bore the burden of showing the relocation would cause detriment requiring a reevaluation of the existing custody order. (FC § 7501(a); Irmo Burgess (1996) 13 Cal.4th 25, 35; Irmo Brown & Yana (2006) 37 Cal.4th 947, 959-960..

The CA observed that “The showing required is substantial. . . . In a ‘move-away’ case, a change of custody is not justified simply because the custodial parent has chosen, for any sound good faith reason, to reside in a different location, but only if, as a result of relocation with that parent, the child will suffer detriment rendering it ‘essential or expedient for the welfare of the child that there be a change [of custody].’&rdquo. (Burgess at p. 38.)

The CA found no abuse of its discretion in the finding Father failed to show detriment. “Mother moved ‘less than an hour from [father’s] home.&rsquo. [M]other had a good faith reason for it. to move in with her new husband, who works at the federal public defender’s office in downtown Los Angeles, runs a landscaping business in Altadena, and has family in Los Angeles County. The CCI report found no detriment from the move.”

The CA denigrated Father’s presentation at trial by unnecessarily characterizing it as “flyspecking” and “nitpicking.&rdquo. “Instead of showing detriment, father … notes mother let the daughter miss school or report late several times each semester, took her to a [KISS] concert, let her sleep over with her husband’s nine-year-old nephew, and took her to a funeral for someone in her husband’s family. … None of these choices or the myriad other shortcomings father sees in mother, even if taken together, [required the court to change custody.]”

Irmo Pano - Unpublished opinion of District 1, Division 4 (Filed September 29, 2011)

Courts must fashion custody and visitation orders to promote: (1) the child’s health, safety and welfare; and (2) frequent and continuing contact with both parents.

Husband and Wife married in 2000 and separated in 2004. Their daughter, V., was born in October 2001. Father did not have any unsupervised contact with V. from 2004 through the time of trial.

The parties agreed to a court order appointing a custody evaluation pursuant to FC § 3111. The custody evaluation was submitted in April 2009. Mother’s trial brief on the bifurcated custody and visitation issues requested an order for supervised visitation for Father.

At trial the custody evaluator focused on two concerns; viz., (1) whether it was likely the child’s paternal grandfather molested his nieces 30 years ago, and (2) whether it was likely Father would molest V. The custody evaluator concluded that grandfather had molested underage girls on multiple occasions. On the other hand, she concluded that father was not inclined to molest V.

The custody evaluator said Mother’s fear that Father might molest V. was exaggerated and that Mother showed some distortion of reality along with an hysterical type of presentation of reality. The evaluator also thought that the Father-daughter relationship was strained because of Mother’s attitude and because he was permitted only limited access. When the custody evaluator interviewed V. in father’s home, she was quite positive, playing and asking her dad questions.

The custody evaluator said both parents were defensive and that Father had problems with impulse control, possessed limited social skills and lacked awareness of how he upset others. A visitation supervisor testified that V. was happy and laughing during visits with Father and said she never witnessed any untoward behavior by Father.

The CA characterized Mother’s various harsh allegations as “unproductive.&rdquo. For example she said, “Father cannot be trusted; his word is worthless. Father is more than a cad and a bounder, he is a con and a thief. . . . [T]he Court should never allow Father the opportunity to complete a pilfering of this child or anything else that is a fruit of the marriage.&rdquo. She also said that father engaged in cruelty to animals, frequented internet pornography sites, hired prostitutes, was excessively absent from the family home prior to separation, and treated her poorly in a variety of ways. The court-appointed custody evaluator discredited Mother’s most serious allegation that he molested a female family member when he was much younger.

The trial court awarded sole physical and legal custody of V. to Mother, with visitation rights to Father. The general orders sharply restricted Father’s contact with V. such as by prohibiting him from taking V outside five counties and requiring him to abide by Mother’s decisions about V even if he believed they violated the court’s orders.

Father was directed to secure joint counseling with V. for the purpose of securing a written recommendation about when Father was ready for unsupervised visits. A psychologist was appointed to report to the court on whether there was any substantial basis to believe Father would physically or sexually abuse V if he were permitted to have unsupervised visits with her.

The trial court fashioned a parenting plan that began with professionally supervised visits but after eight weeks entered a second phase of unsupervised visits each Sunday afternoon followed by two hours of supervised visitation. Phase three permitted eight weeks of supervised visits on Sunday afternoons with Father and his mother. Phase four commenced when the court was satisfied Father was ready for unsupervised visits. These visits were to be on alternate weekends from Friday at 6:00 p.m. to Sunday at 6:00 p.m.

Mother appealed. AFFIRMED

Two vital public policies must inform child custody and visitation orders. The first “primary concern” is the child’s health, safety, and welfare and in this regard, the “perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child.&rdquo. (FC § 3020 (a).. The second concern is that the parenting plan provide for “frequent and continuing contact with both parents” unless contact would not be in a child’s best interest because of a history of abuse by one parent, as detailed in FC § 3011.

Here, the CA noted that Mother resorted to “unconstructive hyperbole and judgmental, conclusory statements premised on the assumption that the trial court was obliged to credit all her accusations and statements as true, all of the time ….&rdquo. Mother speculated that unsupervised visits would place V. “at great risk” in light of the “clear and present danger that the Father will act selfishly, dishonorably, and in violation of Court Orders.”. Her contention was rejected, as was her prediction that Father would violate court orders. The trial court noted Father followed the orders by prohibiting contact between V. and grandfather and by abiding by the court’s orders relating to his professionally supervised visits.

The CA cited other examples of Mother’s exaggerated arguments and rejected them because they were contradicted by substantial evidence to the contrary. The CA concluded “the trial court did an admirable job of crafting a custody and visitation plan that respects the twin public policies set forth above, advances the best interest of V., and affords mother substantial control over the child. … ¶ The record amply upholds the court’s thoughtful exercise of discretion in fashioning visitation and custody orders that protect the safety and well-being of V.”

Family Code Section 3118 Evaluation

The CA rejected Mother’s argument a FC § 3118(a) evaluation should have been ordered by the trial court because there was a serious allegation of child sexual abuse. A “serious allegation of child sexual abuse” is an allegation “based in whole or in part on statements made by the child.&rdquo. First, for a mandatory evaluation, there must be some report by the child to a person specified in section 3118 (a), or substantial independent corroboration, namely written reports from one or more of the listed relevant agencies listed in section 3011 (b).

“Here, the allegation that Father molested a cousin when she was a child and he was an adolescent was made by the cousin as an adult, and repeated by others. Corroborating reports were not received into evidence. The letter from mother’s psychiatrist received into evidence was not substantial corroboration.”

Oral Argument is Not a Right

Mother argued she was denied due process because the trial court declined to entertain closing argument. There is no due process right to deliver closing argument. “In a civil proceeding tried before the court without a jury, oral argument is a privilege, not a right, which the court can afford the parties in its discretion. (Gillette v. Gillette (1960) 180 Cal.App.2d 777, 781.)”