Recent Family Law Cases (current through 3/15/19)
[Opinions available at: http://www.courts.ca.gov/opinions-slip.htm]
By: Stephen D. Hamilton, CFLS
Sturm v. Moyer
2/15/19, CA 2/4: B284553
Before marriage, H incurred a non-dischargeable debt to Plaintiff. Subsequently, H entered into a premarital agreement with W declaring each spouse’s earnings to be the separate property of that spouse. After learning of the marriage, Plaintiff filed action against H and W asserting a single cause of action under the Uniform Voidable Transactions Act (Civ. Code, § 3439 et seq., formerly the Uniform Fraudulent Transfer Act) and sought a set aside of the transfer of H’s CP interest in W’s earnings. After trial court sustained a demurrer, Plaintiff appealed. Reversed. If fraudulent intent is found, under the UFTA the court may set aside premarital agreement in which prospective spouses attempt to make their earnings during marriage separate property. FC 760, which shields non-debtor spouse’s earnings from debtor-spouse’s premarital debt “so long as they are held in a deposit account in which the person’s spouse has no right of withdrawal and are uncommingled with other property in the community estate, except property insignificant in amount.”
Marriage of Ciprari (see discussion in Property/Tracing below)
Marriage of Martin
3/11/19, CA 4/2: E069481
H required to pay W spousal support for four years pursuant to Judgment. After W remarried, H stopped paying spousal support and sought reimbursement of amounts paid after remarriage. Trial court granted H’s request, but was reversed on appeal. Parties had used a local form agreement for judgment but not checked the box indicating support would end on either party’s death, W’s remarriage or further order of the court. CtA held that by failing to check the box, H waived application of FC 4337.
Marriage of Ciprari
2/6/19, CA 2/1: B272039/278187
H’s expert witness performed detailed tracing analysis related to H’s claim that cash and securities in a commingled account were H’s SP. W challenged the tracing on the grounds it was not one of the two traditional tracing methods, direct tracing or family expense tracing. Trial court accepted tracing by H’s expert. Affirmed. W “cites no authority, and we are aware of none, holding that California law precludes trial courts from relying on any tracing method other than” direct or indirect tracing. “We see no reason to straightjacket trial courts by adopting “W’s” prohibition of tracing methods other than the two she identifies. Tracing is simply a method of proof. As noted above, trial courts have the flexibility to consider any credible evidence and to evaluate alternative tracing methods to determine whether the proponent of the tracing carries his or her burden of proof. The tracing method may vary depending on the facts. Thus, trial courts are free to consider and credit reasonable, well-supported, and nonspeculative expert testimony, when determining whether the proponent has successfully traced commingled assets to a separate property source.” Decision also addressed trial court’s use of 2013 tax returns to calculate support when 2014 returns were available (reversed), rejected W’s appeal of a determination that the funding of children’s 529 accounts was a breach of fiduciary duties, reversed and remanded a spousal support award that did not “relate the amount of the award to the marital standard of living” and found trial court abused its discretion in declining to award W attorney and accountant’s fees.
Marriage of Wong
3/7/19, CA4/3: G057202
First Wife and Second Wife were litigating the disposition of proceeds from the sale of trust assets after H died. First Wife contended the judgment in her case required a portion of the proceeds be remitted to her. Second Wife appealed six separate orders made by the trial court, prior to final adjudication of First Wife’s claims, seeking a stay in the trial court pursuant to CCP 916(a). Held: only the injunctive orders made by the trial court were appealable. Although all of the orders made by the trial court were nominally postjudgment orders (thus subject to appeal), not every postjudgment order is appealable. “Instead, orders entered after an appealable judgment must pass three additional tests: (1) the issue is different from the issues decided in the judgment; (2) the order affects the judgment or relates to its enforcement; and (3) the order is not “preliminary to a later judgment.”
In Re L.D.
2/25/19, CA 6: H045544
In dependency proceeding, M belatedly challenged trial court’s findings at jurisdictional and dispositional hearings regarding ICWA compliance. Notwithstanding Department’s concession that the initial ICWA notice was insufficient, finding in In re Isaiah W. (2016) 1 Cal.5th 1 was not applicable as the ruling appealed from was not an order terminating parental rights. As a result, M’s appeal was untimely and dismissed.
In Re L.W.
2/28/19, CA 2/8: B290992
Juvenile court appropriately exercised jurisdiction over child after M admitted use of cocaine (allegedly in front of child) to her physician, and was convicted of reckless driving shortly before dependency proceedings commenced.
In Re D.D.
3/6/19, CA 3: C086808
Removal of children from M’s custody affirmed. Children had previously been removed from M’s care based on findings M had used excessive corporal punishment and physically abused the children. Children were returned to M’s care following reunification period, but remained dependents. After new allegations made, children removed. “The court found by clear and convincing evidence that the children remained at substantial risk of serious physical harm unless removed from mother’s care and that no service could be put in place to prevent the need for removal. The court removed custody of the children from mother…” and denied further reunification services based on expiration of reunification period.
Sass v. Cohen
3/7/19, CA 2/2: B283122
Sass filed a civil action against Cohen asserting various Marvin claims. When Cohen did not file an answer, Sass sought and received a default judgment that exceeded the demand of the complaint. Reversed and remanded. “We hold that actions alleging an accounting claim or otherwise involving the valuation of assets are not excused from limitations on default judgments and, in so doing, add our voice to the growing chorus of cases so holding. We also hold that the amounts of damages awarded and demanded are to be compared on an aggregate basis.” Case remanded for trial court to determine whether to give the plaintiff the option to accept a modified default judgment in this reduced amount or to amend her complaint to demand greater relief (thereby giving the defendant an opportunity to avoid a default by responding to her amended pleading).
Attorney Fees, Costs & Sanctions
Marriage of Ciprari (see discussion in Property/Tracing above)