Recent Family Law Cases (current through 6/21/19)
[Opinions available at: http://www.courts.ca.gov/opinions-slip.htm]
By: Stephen D. Hamilton, CFLS
Marriage of Miotke
5/28/19, CA6: H040611
Private judge adjudicated 1996 Premarital Agreement to be enforceable. PMA waived spousal support for both parties. Affirmed. Even though Wife was not represented by counsel when she executed PMA, the requirement for counsel under FC 1612(c) was not enacted until 2002 and is not applied retroactively. Lack of representation is a factor that can be considered by a court in evaluating a pre-2002 PMA for unconscionability. However, trial court found there was not a “significant inequality of bargaining power” and record contained substantial evidence supporting conclusion both parties voluntarily waived right to spousal support. Further, because unconscionability had to be assessed at the time private judge made a ruling on the PMA, subsequent circumstances arising after that determination were not relevant. CtA analogized to spousal support waivers in an MSA and inability to re-institute spousal support regardless of subsequent circumstances which occur.
Grenier v. Keller
6/14/19, CA 1/3: A154755
M sought award of childcare costs related to her seeking a paralegal certificate. M was already employed in temporary and part-time employment. However, that employment was inconsistent and required M to rely on public assistance. F opposed request on grounds FC 4062 did not apply as M was already employed and was not required by her current employer to pursue paralegal studies. Trial court agreed with F and denied request. Reversed. Addressing an issue of first impression, the Court of Appeal determined that the mandatory add-on for childcare costs related to a parent’s “reasonably necessary or training for employment skills” under FC 4062 “sets forth no qualifying limitations.” Decision distinguishes Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467 as childcare costs in that action were sought even though party was self-supporting and was pursuing “elective education.”
In Re Carrion
5/31/19, USBAP 9th: SC-18-1234-FBKu
H seeks discharge of student loan on grounds it was unenforceable against him based on allegations of fraud, identify theft, and failure to authorize loan. Bankruptcy court rejected those contentions, but found H only half-liable for loan based on FC 916 and his marital settlement agreement with W. Debtor appealed. Reversed. Bankruptcy court failed to correctly apply FC 916(a)(1), under which a spouse’s separate property and property received in the division of assets and debts “is liable for a debt incurred by the person before or during marriage and the person is personally liable for the debt, whether or not the debt was assigned for payment by the person’s spouse in the division.”
Raney v. Cerkueira
6/14/19, CA 1/5: A152549
H served with dissolution summons containing standard family law automatic restraining orders. W then created trust, severed joint tenancy in property [Civ. Code §683.2] and transferred resulting tenant in common interest to trust. W named her son, Petitioner in this partition action, as sole trustee. After partition action filed, W died. Dissolution then dismissed due to lack of jurisdiction. TCT found that severance of joint tenancy substantially complied with ATRO. However, transfer of interest to trust did not. Deed reformed to restore tenancy in common, and son allowed to proceed with partition by sale as the personal representative of W’s estate. Affirmed. “In sum, under the ATRO and section 2040, parties to pending dissolution proceedings are restrained from unilaterally eliminating a right of survivorship unless, in addition to the generally applicable requirements for effectuating such a change, notice of the elimination is filed and served on the other spouse. The requirements to unilaterally eliminate a right of survivorship may be completed in any order [notice and recording of deed]. When the last remaining requirement is completed, the elimination of the right of survivorship takes effect.
Lugo v. Corona
5/28/19, CA 2/4: B288730
Existence of a criminal protective order does not preclude issuance of a DVPA protective order.
Marriage of Ankola
6/20/19, CA 6: H045899
TCT issues mutual restraining orders under DVPA following H’s request for order. H appeals, arguing trial court erred in issuing mutual restraining order when W had not filed a separate request for same under FC 6305(a)(1). Reversed. Under FC 6305(a), mutual restraining orders can only be issued when each party “presents written evidence of abuse or domestic violence in an application for relief using a mandatory Judicial Council restraining order application form.” As W had not submitted a DVRO application, trial court erred in issuing a mutual restraining order in W’s favor. A secondary issue was whether TCT could modify a previous DVRO issued in W’s favor against H as part of H’s application. CtA found trial court had no jurisdiction to modify W’s prior order.
In Re B.D.
5/24/19, CA 1/4: A155254
Appeal filed after parental rights terminated by trial court at WIC 366.26 hearing. During appeal, M requested court take additional evidence pursuant to CCP 909. After “…matter fully briefed, the parties stipulated to reversal, jointly recognizing that, following the termination of parental rights, “subsequent events [have] undermined the juvenile court’s finding that [Minor] was likely to be adopted.”” CtA granted CCP 909 motion and rejected stipulated reversal as it “would mask an error of federal constitutional magnitude that warranted a reasoned opinion….” Reversed and remanded for new WIC 366.26 hearing. Parental rights had been terminated based on a finding that Minor was likely to be adopted by foster parents. During a neglect investigation into allegation of physical abuse by foster parents that occurred after WIC 366.26 hearing, it was discovered an allegation of possible sexual abuse of the minor in the foster parents home had occurred a year earlier but had not been disclosed by the Contra Costa County Children and Family Services Bureau at (or before) the WIC 366.26 hearing. Further investigation revealed that one of the foster parents had spent 7 years in state prison for a home invasion burglary and that 3 of the foster parent’s adult sons had been victims of sexual abuse then committed sexual offenses against other juveniles. During testimony, it was revealed foster parent’s rights to his three sons had been terminated. Social worker admitted that she was aware of the foster father’s criminal and child welfare history, “but saw no need to mention these things” since foster father and mother were licensed foster care providers. Decision then recounts trial court’s pointed and critical comments about what occurred, as well as eliciting these allegations had not been disclosed to minor’s counsel.
Addressing the legal issues raised in the decision:
- “Where post-judgment evidence stands to completely undermine the legal underpinnings of the juvenile court’s judgment under review…” it is appropriate for the CtA to receive additional evidence on appeal under CCP 909.
- CtA could reject stipulated reversal where it fails to state the legal basis for the reversal, or where a case can provide an instructive example by way of a published decision.
- A welfare agency’s breach of the obligation to provide a preliminary assessment of adoptability can be (and was here) so egregious it rises to the level of a due process violation justifying reversal.
Levinson Arshonsky & Kurtz LLP v. Kim
5/29/19, CA 2/1: B289308
Trial court denied client’s request to arbitrate under Mandatory Fee Arbitration Act (B&P 6200 et seq) as request was made more than 30 days after notification of right to arbitrate fee dispute. “Because the denial of a petition to compel a MFAA arbitration is not an appealable order, we lack jurisdiction to consider Kim’s appeal.” CtA also declined to treat appeal as a writ petition based on lack of unusual or exigent circumstances. CtA then rejected law firm’s requests for fees for a frivolous appeal as the firm was self-represented.
LaSalle v. Vogel
6/11/19, CA 4/3: G05538
CCP 583.130 establishes policy that “a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition….” Under that policy, Plaintiff in legal malpractice action should not have given one day to respond to request for answer to be filed before seeking default. Decision summarizes opinions addressing the lack of civility and cooperation in the legal profession, while also noting the deficiencies of email communications. Under CCP 583.130, trial court abused its discretion in not setting aside default entered seven days after response due and one day after attorney for defendant notified of intent to request default, and in light of “total absence of prejudice” to plaintiff from set-aside. Complexity of underlying lawsuit (malpractice claim made by Plaintiff against her divorce attorney) as well as trial court’s improper award of emotional distress damages which are not recoverable in a family law legal malpractice claims were other factors cited by CtA.
Marriage of Benner
6/12/19,CA 4/1: D073758
TCT determines that Evid. Code 730 child custody evaluation was deficient and of no value. Court orders evaluator to repay all fees paid by parties. That order set aside and Court joins evaluator sua sponte. TCT then grants motion to quash sua sponte joinder and orders a party to file request to join evaluator. Party complies with order. TCT then denies evaluator’s anti-SLAPP motion seeking to quash joinder. Affirmed. However, CtA then notes that it was error for TCT to require evaluator to be joined. TCT could conduct an evidentiary hearing with respect to whether evaluator should repay fees paid by parties without joinder of evaluator as a party to the action. Due process requirements would be satisfied by notice and opportunity to be heard with respect to fees that evaluator received pursuant to Evidence Code section 730.