Recent Family Law Cases (current through 5/20/19)
[Opinions available at: http://www.courts.ca.gov/opinions-slip.htm]
By: Stephen D. Hamilton, CFLS
Mesa RHF Partners L.P. v. City of Los Angeles
3/29/19, CA 2/1: B288355
In order for the court to retain jurisdiction to enforce a settlement agreement under CCP 664.6, the request “must conform to the same three requirements which the Legislature and the courts have deemed necessary for CCP 664.6 enforcement of the settlement itself: the request must be made (1) during the pendency of the case, not after the case has been dismissed in its entirety, (2) by the parties themselves, and (3) either in a writing signed by the parties or orally before the court.” The request must also be express (not implied), clear and unambiguous. Because requests for dismissal filed in case made reference to CCP 664.6 but were not made “by the parties themselves,” TCT did not retain jurisdiction to enforce settlement agreement. To invoke CCP 664.6, parties only needed to attach a copy of the settlement agreement they executed to a stipulation and proposed order requesting that TCT retain jurisdiction.
Marriage of Kent
5/17/19, CA 4/1: D074529
TCT modifies North Carolina child custody and child support order without first determining if California had jurisdiction under UCCJEA. Reversed. Although Mother registered North Carolina order in California, and the parties stipulated California had jurisdiction to make custody orders pursuant to FC 3048, CtA found that TCT lacked jurisdiction to modify the North Carolina order. Registration only permits enforcement in California—modification requires findings under FC 3421 et seq. to end the exclusive, continuing jurisdiction of the original court. Except in emergency situations, that means the original court must make a determination it no longer has exclusive continuing jurisdiction, California would be a more convenient forum, or the child and parents no longer reside in the out-of-state forum. Here, Father still lived in North Carolina and the North Carolina court had not been contacted as required under FC 3426(b). The family court’s notation in its minutes that “[t]he parties agree that California has UCCJEA jurisdiction” is insufficient to establish modification jurisdiction, because ” ‘[t]here is no provision in the UCCJEA for jurisdiction . . . by stipulation[,]” citing Fernandez-Abin, 191 Cal.App.4th at p. 1040.
Child Custody & Visitation
Marriage of C.T. & R.B.
3/19/19, CA 4/2: E070089
TCT granted F’s request to change primary custody from M in CA to F in Arkansas. Child had lived with M since birth in 2006. On appeal, M contended F had not met burden of proving move to Arkansas would not cause detriment to child, and that change in physical custody was in child’s best interests. Reversed. Although record included evidence M was parent least likely to share custody, failed to provide school and address information, and had set up barriers to visitation, “Father has not met his burden of showing that it was essential or expedient for the welfare of [the child] that there be a change in custody.” As a result, Father had not shown a substantial change of circumstances that a different custody arrangement would be in the child’s best interests. CtA held that under Jane J. v. Superior Court (2015) 237 Cal.App.4th 894, “… Father, as the noncustodial parent, held the heavy burden of establishing that [the Child] would not sustain detriment by the proposed move, and that moving [the Child] out of state would serve [the Child]’s best interests.”
County of San Diego DCSS v. C.A.
4/22/19, CA 4/1: D074172
TCT denied DCSS request for support order against M on behalf of a child residing with paternal grandmother in Maryland, who had sole legal and physical custody. TCT applied FC 3951(a), which eliminates responsibility when a relative is voluntarily supporting the child and in absence of a compensation agreement. Reversed. “However, once the court issued its order awarding Grandmother sole legal and physical custody of J.H., she was no longer free to discontinue caring for J.H. At that point, Grandmother became legally obligated to “make long range decisions involving [J.H.’s] education, religious training, discipline, medical care, and other matters of major significance,” as well as to “provide a home for [J.H.] and to make the day-to-day decisions required …” (Taylor v. Taylor (Md.Ct.App. 1986) 508 A.2d 964, 967.) Once the court awarded Grandmother full legal physical custody, her support ceased being “voluntary.”
Look v. Penovatz
4/8/19, CA 6: H044754
Plaintiff sought reimbursement under FC 3950 of funds spent on Defendant/F’s child who was living in Plaintiff’s home while M and Plaintiff had “essentially [a] husband and wife relationship.” During the relevant time, F was paying child support to M pursuant to court order. Based on F’s compliance with support order, TCT and CtA held that Plaintiff was not entitled to reimbursement.
County of San Diego DCSS v. C.P.
4/8/19, CA 4/1:D073403
Following release after 4-year incarceration in federal prison, F requested adjustment of child support arrears which had accrued during incarceration. TCT granted request under current FC 4007.5. Reversed and remanded. FC 4007.5 only applies to child support orders issued on or after October 8, 2015. Order in question was issued in 2013. Remanded to TCT to determine whether the former FC 4007.5 included a savings clause which would allow relief from arrears.
Marriage of Oliverez
3/25/19, CA 6: H044451
Following reversal on appeal resulting in retrial, TCT appropriately valued assets at the time of the retrial, not the initial trial. Based on Hayden, TCT has “discretion to set a property valuation date after appeal according to principles of equity based on the facts of the case.” CtA also affirmed TCT’s order to sell real properties instead of valuing them and assigning them to H, in part based on H’s failure to object to court’s proposed statement of decision ordering sale or by demonstrating sale of the properties was not necessary to effect an equal division of community property.
Marriage of Brooks
3/27/19, CA 6: H043467
H owned stock in business he started before marriage. TCT applied Van Camp formula and characterized the increased value of the stock after marriage as a return on H’s separate property, finding H had not contributed to growth of business during marriage. Affirmed. In order to apply Van Camp, instead of Pereira, the court does not need to find a spouse “made absolutely no contribution to the increase in value during the marriage….” Instead, the issue is whether the spouse’s “efforts during the marriage were the “chief contributing factor” causing the increase[,]” citing Brandes. CtA rejected W’s argument that Van Camp only applies when market changes cause the increase of separate property during marriage. Substantial evidence supported TCT’s finding H’s earnings during marriage adequately compensated the community for his efforts. As a result, TCT did not abuse its discretion in applying VanCamp to apportion the increase in stock value during the marriage.
Herriott v. Herriot
3/20/19, CA 2/8: B287997
Divorced elderly couple continue to reside in the same building. What ensues is “a documented history of legal actions, complaints, and issues against one another.” This culminates in H requesting an elder abuse restraining order (EARO) and W requesting a DVPA order, both of which were granted by TCT. On appeal, H challenges DVRO issued against him as well as TCT’s failure to make a detailed finding as to who was the primary aggressor. Affirmed. Because H sought an EARO, FC 6305(A)(2) did not apply and therefore TCT did not need to make detailed findings of facts regarding who was the primary aggressor and that neither acted primarily in self-defense.
N.T. v. H.T.
3/26/19, CA 4/3: G055885
TCT denied request for DVRO based on alleged violations of TRO on the grounds “technical violations” of a TRO are not an act of domestic abuse. Reversed and remanded. “For purposes of the Domestic Violence Prevention Act, Family Code section 6200 et seq. (DVPA), abuse includes behaviors that were enjoined by a TRO, and is not limited to acts inflicting physical injury. (Fam. Code, §6203.) On remand, the trial court shall make necessary findings regarding whether the acts alleged by the wife actually occurred and, if they did, the court shall enter the DVRO as requested.”
Marriage of Molinaro
3/29/19, CA 2/3: B282014
DVPA restraining order which precluded restrained party from posting anything about divorce case on Facebook was “an overbroad, invalid restraint on his freedom of speech.” That provision reversed, while restraining order affirmed in all other respects. Under Candiotti, “’courts `are given broad authority to supervise and promote the welfare of the children’ and may constitutionally order parents to refrain from disparaging their former spouse in front of their children.” However, the posts in this case “were not specifically directed to the minor children….” As the order was not “necessary and narrowly tailored to protect the interests of the children to promoting [the best interests of the child,]” it was an invalid prior restraint on speech.
Termination of Parental Rights
In Re H.D.
5/18/19, CA 4/2: E070576
M cedes custody of children to F to address her addiction issues. 14 months later, after treatment, M requests custodial orders in family court. Step-M then files for a petition to terminate M’s parental rights so she could pursue a FC 7822 stepparent adoption. TCT granted Step-M’s request and terminated M’s parental rights on grounds M failed to communicate with or financially support children for at least one year. Reversed on appeal. Evidence was insufficient to establish M had not communicated with children or supported them for 12 months “with the intent…to abandon the children.” Mother’s intent was not to abandon children, but to treat her addiction before regaining custody of children. M also had provided evidence to the TCT that F was refusing contact with the children while M was in treatment program.
In Re Charlotte C.
3/25/19, CA 4/1: D074022
In dependency action, minor’s counsel is entitled to receive Resource Family Approval Program (RFA) related information pursuant to WIC SS 317(f) and 827, notwithstanding the confidential status of the information collected. However, “[i]f minor’s counsel determines that access to additional confidential information is necessary to fulfill her duties and responsibilities to the child under federal and state law, on a showing of good cause, minor’s counsel may petition the juvenile court for access to additional RFA information under section 827 and California Rules of Court, rule 5.552.”
In Re C.W.
3/29/19, CA 1/2: A152993
TCT terminated reunification services for both parents and placed child with F, “a parent who is an admitted, convicted child sex abuser, failed to reunify with his son, participated in barely any reunification services, engaged in no sexual abuse counseling, and lives on the other side of the continental United States….” While appeal was pending, child struggled in placement and was placed in an out-of-state group home by F. Eventually, child was returned to CA to live with M. CtA held appeal not moot notwithstanding subsequent events as CA had continuing jurisdiction under UCCJEA to decide issues affecting child’s permanent custody. CtA reversed TCT custody award and termination of jurisdiction. The TCT’s issuance of an exit order under WIC 362.4 awarding sole custody to F was an abuse of discretion in light of F’s prior history of “sexually inappropriate behaviors toward three other minors” and absence of any evidence F had received services or treatment to address those behaviors.
In Re Caden C.
4/9/19, CA 1/4; A153925
TCT issued permanent plan of long-term foster care rather than adoption based on finding M had established beneficial relationship with child (beneficial relationship exception). Reversed. CtA concluded the TCT’s reliance on beneficial relationship exception was an abuse of discretion. Although mother’s visitation with child satisfied the regular and frequent visitation requirement of the beneficial relationship exception, and the TCT found a significant parent-child attachment that was beneficial for child, the “compelling reason” to not terminate parental M’s parental relationship could not be established given the public policy favoring adoption over long-term foster care. “We conclude this is one of the rare and difficult cases in which the juvenile court’s application of the beneficial relationship exception amounted to an abuse of discretion. On this record, no reasonable judge could have concluded that a compelling justification was made to forgo adoption and order a permanent plan of long-term foster care for [the child].” CtA found record did not establish M had “substantially complied with her case plan,” maintained her sobriety, or addressed her mental health issues. CtA also found TCT “gave short shrift to uncontroverted evidence that long-term foster care posed substantial risk of further destabilizing a vulnerable child, fostered unhealthy and sometimes “toxic” interactions between mother and child, and robbed [child] of a stable and permanent home with an exceptional caregiver.”
Attorney Fees, Costs & Sanctions
Marriage of George & Deamon
5/17/19, CA 4/1: D073667
W appealed FC 271 sanction order issued after H had to file a motion for entry of judgment pursuant to CCP 665.6 to enforce parties’ settlement agreement recited on the record. W argued TCT “erred by awarding sanctions without considering any oral testimony, relying instead on documents submitted in support of the sanctions motion.” Affirmed. Although H was not present to testify, and W objected under FC 217 and Shimkus to H’s declarations as hearsay, the CtA held that since W had not served a witness list or notice to appear under CCP 1987(b), she had “forfeited” the right to live testimony (citing Binnette). Further, “When the parties fail to present any live testimony in support or opposition to a motion in family court, Code of Civil Procedure section 2009 controls, which—despite the hearsay rule—allows a motion hearing to be decided based on declarations. (Code Civ. Proc., §2009). Distinguishes Swain on grounds W knew of declarations in advance and did not expressly request right to cross-examine H.
Du-All Safety LLC v. Superior Court
4/18/19, CA 1/2; A155119
TCT granted motion to strike supplemental expert witness designation of party who complied with initial exchange and CCP 2024.280 requirements for supplemental exchange. Reversed. “Here, Du-All disclosed the experts it expected to call at trial. Then, when plaintiffs disclosed five other experts, and, it must be emphasized, also produced a life care plan, Du-All retained and designated experts to rebut plaintiffs’ position, including its own expert on a life care plan. This is the precise reason why the Legislature codified the right to designate rebuttal experts. The trial court’s denial of this enumerated right by placing limitations not found in the Code of Civil Procedure was an abuse of discretion.”