Family Law News Monthly, Editor: Jillian E. Atuegbu, firstname.lastname@example.org
Family Law News Monthly, Assistant Editor: Craig Pedersen, email@example.com
Family Law News, Executive Editor: Nathan Gabbard, firstname.lastname@example.org
Family Law News, Assistant Editor: Alexandra O'Neill Muller, email@example.com
THREE R’s (Ruling, Remain, Register)
For this month’s Chair Message, I present three completely unconnected messages with two shared traits. First, they are in my humble opinion all equally important and worthy of your consideration. Second, I could work in the letter R with all three. So, this month’s Chair Message is officially brought to you by the letter R.
Wait For A Ruling Regarding Spousal Support
We are now out of the optional phase of PUBLIC LAW 115–97—DEC. 22, 2017 131 STAT. 2089, aka the Tax Cuts and Jobs Act of 2017. As we already know, any new spousal support order made from January 1, 2019, forward is non-deductible to the payor and non-taxable to the recipient. However, Section 11051(c) of the Act holds out the prospect of orders made after January 1 still being deductible if they modify an order made before January 1, 2019. That section, titled “Effective Date” states that “the amendments made by this section shall apply to … “(2) any divorce or separation instrument (as so defined) executed on or before [December 31, 2018] and modified after such date if the modification expressly provides that the amendments made by this section apply to such modification.” And therein lies my concern.
I am confident a temporary spousal support order made before January 1, 2019 can be modified and remain deductible. I am also confident a permanent spousal support order made before January 1, 2019 can be modified and remain deductible. But what about a permanent spousal support order made now that is replacing a temporary spousal support order made before January 1, 2019?
I think a logical argument could be made that the permanent order is not modifying the temporary order, but instead replacing the temporary order.In California, the two types of orders are established by two entirely different code sections (Cal. Fam. Code Section 3600 for temporary spousal orders, Cal. Fam. Code Section 4320 for permanent spousal support orders). They have two separate and distinct objectives (preserving the status quo for temporary spousal support vs. achieving the goal of self-support within a reasonable period of time). And they are calculated in entirely different manners—in fact the method generally used to calculate temporary support (i.e. a support calculator) is specifically prohibited when determining permanent spousal support. See Marriage of Schulze (1997) 60 Cal. App. 4th 519, 526-527.
Are you really modifying a temporary order when a permanent order is made? I am not confident you are. As a result, I am advising my payor clients to wait for an IRS ruling before agreeing to a permanent, “deductible” spousal support order which is replacing a previous deductible temporary order. Because, I do not see a clean and easy fix if the IRS determines that a permanent spousal support order is not a “modification” of a temporary spousal support order.
Remain in the Section
Since it is that time of year we have to renew our Bar Membership, this is also the time for you to remain in the Family Law Section. While I am biased, I think the value received from Section membership is well worth the $95 fee. For that paltry sum, you receive:
Which is a nice segue to my third R…
Register for Minor’s Counsel Training
Registration is still open for the 2019 San Luis Obispo County Minor’s Counsel Training, which is being sponsored this year by the Family Law Section. We have an incredible panel of speakers this year: the Hon. Thomas Trent Lewis, the Hon. Erin M. Childs, trauma expert Mary Kelly Persyn, Fresno County Superior Court Family Court Services Director Cheryl Scott, the always engaging and entertaining Gregory Gillett and myself. The program offers all 12 hours of education required to begin acting as minor’s counsel, with 8 hours of new content to meet the annual requirements for attorneys who are continuing as minor’s counsel.And you get to spend the weekend in Pismo Beach, with a complimentary lunch on Saturday and complimentary breakfast on Sunday. The fee is $300 for registration before February 1, 2019, $350 thereafter.
Helpful links for the program are:
We have only 150 spaces available, and I expect a sellout this year based on the incredible reviews from last year’s event, such as this one:
I have attended other conferences for minor’s counsel and this one is the crown jewel of conferences. Excellent speakers, topics and materials. Thank you!!!
I therefore encourage you to register soon if you want to attend this year’s training.
Omne Trium Perfectum
Stephen D. Hamilton
Chair, Family Law Executive Committee of the California Lawyers Association
The Tax Cuts and Jobs Act – What Every Attorney Should Know
Thursday, January 24, 2019, 12:00 p.m. to 1:00 p.m.
This program offers 1 hour participatory MCLE credit in Elimination of Bias. You must register in advance to participate.
The Tax Cuts and Jobs Act is having a significant impact on owners of small businesses, including many solo practitioner attorneys and law firms. This webinar will highlight the new IRC Section 199A (20% Deduction) and its effect on small businesses, as well as its impact on post-2018 alimony payments and support orders.
Key issues to be discussed:
Webinar Replay: Competence: Substance Use Disorders, Mental Health and the Practice of Law.
Thursday, January 31, 2019, 12:00 p.m. to 1:00 p.m.
This program offers 1 hour participatory MCLE credit in Competency Issues. You must register in advance to participate.
In this compelling presentation, you will learn about the harmful physical and mental effects of alcohol and drug abuse and addiction. How do we recognize use and abuse of alcohol and other substances? Why are legal professionals prone to alcohol and drug abuse and addiction? What are the impacts to family, friends, employers, clients and colleagues of alcohol and drug abusers? When is it time to get professional help to intervene and preserve one’s health and career? The presenter will use their own personal journey and experience to bring these important issues to the forefront and will provide resources for your consideration, and highlight the role that The Other Bar can play in the recovery process.
Moderators: Kelly Robbins and Leena S. Hingnikar
Speaker: Greg Dorst
Recent Family Law Case Law (current through 1/4/19)
[Opinions available at: http://www.courts.ca.gov/opinions-slip.htm]
By: Stephen D. Hamilton, CFLS
W.M. v. V.A.
M obtains decree in Belarus finding the residence of child is Belarus, where M resides.F, unaware of Belarus action or decree, files custody petition in CA.M successfully moves to quash service of California action under FC 3426(a), the “simultaneous proceedings” statute.CA court grants motion to quash, finding that although CA would otherwise have jurisdiction, jurisdiction cannot be exercised if a child custody proceeding has already been commenced in a court of another state “having jurisdiction substantially in conformity with” the UCCJEA.The TCT expressly found Belarus court had jurisdiction “substantially in conformity with” the UCCJEA. Reversed.“Because father received no notice of the Belarus action, and because notice was not given “in a manner reasonably calculated to give actual notice” (FC 3408(a)), the Belarus court did not have jurisdiction in conformity with UCCJEA standards. The trial court therefore erred in granting mother’s motion to quash and refusing to exercise its jurisdiction.”
David L. v. Superior Court
12/17/18, CA4/1: D073996M
CA may not exercise personal jurisdiction over a nonresident in a paternity action where M and child live in CA but conception occurred in another state.F’s infrequent trips to CA for business purposes created a tenuous relationship with the state at best which did not support exercise of jurisdiction.
C.A. v. C.P.
Paternity, Third Parent
Biological father (BF) conceived child with M, who was at the time of conception (and still was at time of hearing) in an intact marriage with H.H did not initially know he was not child’s father.M and H raised child in their home.For the first three years of the child’s life, they allowed BF “to act in an alternate parenting role, and the child bonded with [BF’s] close relatives.”All contact was cut off after BF filed this action.TCT found M had initially mislead the court regarding BF’s involvement in child’s life, but that the “lack of candor” by M did not break the strong bond BF previously developed with the child.TCT then made a finding BF was a third parent to child.Affirmed on appeal.H conclusive parentage under FC 7540 was not the equivalent of exclusive parentage, preventing finding of third parent under FC 7612(c).BF had presumed parent status under FC 7611, which was not lost due to temporal gap in contact after action commenced.M and H’s claims that FC 7612(c) violates the Constitution were also dismissed by the CtA.
Lief v. Superior Court
1/2/19; CA 4/1: D074947
Child Custody & Visitation (Move-away)
Writ relief requested after TCT allowed M to move with minor child to Israel before expiration of 30-day statutory stay under CCP 917.7.TCT held that the 30-day stay commenced with the issuance of the tentative ruling.CtA disagreed– the stay begins on the date a judgment or order is entered, and a statement of decision is neither.
Marriage of T.C. and D.C.
12/18/18, CA4/1: D073182
W sought modification of Osler-Smith order, alleging that a significant increase in her income represented a change of circumstances.TCT agreed and reduced spousal support.CtA held that substantial evidence supported finding of change of circumstances warranting a reduction in support.However, because TCT “failed to consider the parties’ reasonable expectations as expressed in their dissolution agreement that Wife's earnings would continue to increase,” reversed and remanded.
Marriage of Vaughn
11/27/18, CA2/6: B286871
Community Property, Bankruptcy
H appealed after TCT ruled that his outstanding debt on a loan from a family partnership—in which former W was a limited partner—was nondischargeable in bankruptcy.TCT found the debt was exempt from discharge pursuant to 11 USC 523(a)(15) .CtA affirmed, holding that “... when the nature of a debt is such that its discharge will directly and adversely impact the finances of the debtor’s spouse or former spouse, it is nondischargeable in bankruptcy, even if it is not directly payable to the spouse.”
In Re Bruno M.
11/2/18, CA 2/3: B287537
F contested permanent restraining order issued in favor of children as part of juvenile court’s disposition orders, solely contending on appeal the order protecting the children was not supported by substantial evidence because the children were “never in the line of fire” when he beat mother.CtA disagreed.“We conclude the children were indeed at risk of physical harm and, in any event, father’s lengthy history of domestic violence against mother and the parents’ frequent reconciliations justify the minors’ inclusion in the restraining order.”
Marriage of Davila and Mejia
11/19/18, CA 2/7:B279874
At hearing on request for DVRO, W testifies as to acts of abuse not set forth or described in her application for the order, to wit that H had placed a gun to her head.TCT found W’s testimony credible and issued DVRO.On appeal, H asserted W should not have been allowed to testify about acts of DV not specifically alleged in the request.However, H did not provide any legal authority to support his position and did not object to the testimony during the hearing, forfeiting the argument.“Even if [Husband] had not forfeited this argument, the trial court did not abuse its discretion in considering” the testimony regarding the gun incident.General allegations of threats of physical harm in the application were sufficient, and H had the opportunity to respond to the testimony at the time of the hearing.
Martindale v. Ochoa
Protected party sought to extend previously granted three-year domestic violence restraining order.TCT denied the request, finding “appellant had not shown “reasonable apprehension” of future abuse. Affirmed.Trial court could properly deny request based on additional evidence submitted at renewal hearing.In this case, TCT found evidence of Respondent’s “intentional avoidance of unintended contact” with the protected party.TCT also found that protected party had knowingly joined the restrained party’s gym and made negative comments about restrained party to restrained party’s friend.These acts were found to be “inconsistent” for someone fearful of domestic violence.
S.Y. v. Superior Court
12/19/18, CA4/1: D073450M
Trial court improperly considered F’s greater fluency in English as a rebutting factor under FC 3044.However other substantial evidence supported TCT ruling that F had rebutted the presumption of detriment, and denied writ seeking to reverse TCT order granting joint legal and physical custody to both parents.TCT was required to and did consider the seven factors set forth in FC 3044(b).However, TCT is not required to specifically address each of the seven factors in its statement of decision (disagreeing with Jaime G. v. H.L. (2018) 25 Cal.App.5th 794).“The trial court need only provide sufficient reasons to permit meaningful appellate review.”
In re Israel T.
11/21/18, CA2/4: B286821
F appealed juvenile court jurisdictional order, even though TCT found “no substantial risk of serious harm to the children from the parents’ actions, and at the dispositional phase, returned the children to the custody of the parents, finding that the parents did not constitute “any kind of risk to the children.”’Based on that finding, CtA reversed.Based on the cited findings, the TCT could not find the statutorily required elements for exercising jurisdiction had been met.
In re Cody R.
M appeals order terminating parental rights, arguing social service agency failed to give preferential consideration to placement with relatives. Appeal dismissed based on finding M did not have standing to appeal the placement order, as M only challenged placement and not the termination of her parental rights.M’s writ of habeus corpus used to present claim of error based on evidence not in the appellate record was denied.“We hold that habeas corpus in dependency proceedings is limited to claims of wrongful withholding of custody of the child, including lack of jurisdiction, and claims of ineffective assistance of counsel.”
In Re J.Y.
Dependent child removed from prior caretakers to be placed with caretaker of child’s two siblings, with all to be adopted through tribal customary adoption. M appealed.In consolidated appeal, M also asserted Tribe did not have standing to petition to modify orders in juvenile court.Affirmed.M did not have standing to appeal the placement order as her reunification services had long since terminated (although her parental rights had not yet been terminated).CtA also found Tribe had standing to file modification petition under WIC 388(a)(2).TCT also appropriately gave full faith and credit to amended tribal customary adoption order.
Gassner v. Stasa
12/17/18, CA4/2: E068058
In civil action, TCT issued cost order against Plaintiff and their attorney after action dismissed voluntarily without prejudice.Reversed.The order awarding costs against the attorney was void, as the attorney was not a party.
FLEXCOM is seeking members who are dedicated to advancing Family Law, and who enjoy hard work in a collegial atmosphere
The Executive Committee consists of 17 dedicated volunteers along with several advisors who are responsible to carry out the Section’s mission of furthering Section members’ knowledge in all areas of family law. Throughout the year, the Committee maintains and develops educational opportunities, actively advocates for family law legislation and policy, puts together the quarterly Family Law News publication, and issues periodic electronic newsletters to keep membership abreast of current family law issues.
FLEXCOM is looking for applicants from all areas of family law practice. We encourage you to consider applying whether you work for a firm in a small jurisdiction, practice at a legal services agency in a large county, or work for yourself in a solo practice. We also encourage practitioners in dependency and adoptions as well as those who handle dissolutions, property division and custody. All FLEXCOM asks is that you play well with others and are committed to improving the practice of family law across the state.
Applications are due March 1, 2019. The committee application and a discussion on process can be found at the following link: https://calawyers.org/About-CLA/Appointments-Process. If you have any questions about the role of FLEXCOM or requirements for serving on the committee, please contact FLEXCOM Chair, Stephen D. Hamilton at firstname.lastname@example.org or Vice Chair, Stephen Montagna at email@example.com.
Family Law Section Awards – Seeking Award Nominations
FLEXCOM has four questions for you to consider:
If you answered yes to any one of those questions, we seek your nomination for the 2019 Family Law Section Awards.
The Executive Committee for the Family Law Section (FLEXCOM) of the California Lawyers Association is seeking nominations for outstanding contributions to the practice of family law for 2019 in the following categories:
Family Law Judicial Officer of the Year: The award is intended to recognize excellence on the Family Law bench. Particular focus is paid to outstanding service to the practice of Family Law, career achievements, or a distinguishing singular act or performance of the nominee.
Family Law Lifetime Achievement Award: Designed to honor and recognize the most distinguished long‑term achievements and sustained substantial contributions to the substance or practice of Family Law in the State of California over the recipient's career or lifetime.
Excellence in Family Law: The award is to honor and recognize recent notable acts or outstanding service that contributes substantially to the improvement of California Family Law substance or practice. Recipient need not be a lawyer.
Court Staff Award: The award is to honor and recognize sustained superior performance or extraordinary efforts in the recipient's performance of his or her work with the Family Law courts. Nominations shall be solicited from Family Law bench officers. Nominees shall be deserving court personnel, which may include (but not limited to) clerks, judicial assistants, Family Law Facilitators, DV counselors, court reporters, bailiffs, administrative personnel and Family Court Services employees.
Barrister Award: The award is to recognize outstanding contributions to the practice of Family Law or outstanding performance in the practice of Family Law for barrister lawyers. The recipient of this award must be a lawyer who practices primarily in the area of Family Law and who has been a member of the State Bar of California for five (5) years or less. The recipient need not be a member of the Family Law Section.
Nominations are due by March 1, 2019. FLEXCOM members will vote on the nominations at their April meeting. Please submit your nomination to Stephen A. Montagna, CFLS, FLEXCOM Vice-Chair.
Are you a Section member who wants to be reminded of all the benefits? Do you have a colleague on the fence about joining the Section? Being a Family Law Section member offers a number of great benefits. READ MORE
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