Recent Family Law Cases
[Opinions available at: http://www.courts.ca.gov/opinions-slip.htm]
FAMILY LAW (current through 12/20/2020)
By: Michelle L. Kazadi, CFLS
Bernd Reuter v. Claudia L. Macal
11/18/20, CA 2/5: B298265
Plaintiff executed a deed granting Defendant a joint interest in his condominium. Plaintiff sued seeking to quiet title to the condominium in his favor. At trial, Plaintiff argued, among other things, that the deed should be rescinded under Civil Code section 1590 (section 1590) as a gift made in contemplation of marriage. The trial court held that the tolling rule in Muktarian v. Barmby (1965) 63 Cal.2d 558, 560 (Muktarian) applies to Defendant’s statute of limitations defense and applies in the context of Plaintiff’s claim for relief under section 1590. The trial court entered a judgment declaring that Defendant held title to the condominium in constructive trust for the benefit of Plaintiff and ordering her to reconvey that title to Plaintiff. Defendant contends that Plaintiff’s quiet title claim was barred by the three-year limitations period in Code of Civil Procedure section 338 (section 338). However, the appeals court held that it is unnecessary to determine which statute would otherwise apply, for no statute of limitations runs against a Plaintiff seeking to quiet title while he is in possession of the property. Affirmed.
In re Marriage of Rosemary and James Sawyers. Rosemary Sawyer v. James Sawyer. Santa Cruz County of Child Support Services.
11/20/20 CA 6: H046558
Appellants separately appeal the trial court’s order stating that $28,890 (or the $89,582.15) in arrears was “stayed on equitable grounds during periods of time father had sole custody of children.” Appellant CSSD argued that the trial court lacked authority to award Father equitable relief by staying enforcement of a portion of the arrears. In his appeal, Father contends that the trial court erred (1) by refusing to stay the remainder of the arrears determined in Minnesota because the Minnesota court did not have personal jurisdiction over him when it entered the 2001 Minnesota order and (2) by failing to continue the proceeding to permit him to present additional evidence about all the equitable “off-sets” he was due.
The Uniform Interstate Family Support Act (UIFSA), now codified at Family Code sections 5700.101 et seq., “governs, inter alia, the procedures for establishing, enforcing and modifying child support orders in cases in which more than one state is involved.” (In re Marriage of Connolly (2018) 20 Cal.App.5th 395, 402.) “The goal of UIFSA is to ensure that ‘only one valid support order may be effective at any one time,’ even though the parties and their children may move from state to state.”
The trial court’s order staying enforcement of $28,890 of the 2001 Minnesota order violated sections 5700.606, 5700.607, and 5700.608, and was unsupported by any applicable case law interpreting the UIFSA. Because the trial court lacked authority to modify the 2001 Minnesota order, the appellate court reverses that portion of the December 18, 2018 order.
As for Father’s claim regarding the Minnesota court lacking jurisdiction, UIFSA states that lack of personal jurisdiction is one of the grounds on which a non-registering party can seek to vacate the registration of a support order. However, that challenge must be made in a timely manner. Based on the provisions of the UIFSA discussed above, Father was precluded from raising the jurisdictional issue in California in 2018, over a decade after the 2001 Minnesota order was registered and confirmed in California. The trial court found, there is no merit to Father’s claim that the Minnesota court did not have jurisdiction over him. Additionally, Father was unable to show any prejudice from the trial court’s failure to grant a continuance to allow him to present additional evidence because the trial court lacked authority to modify the 2001 Minnesota order. The trial court is directed to enter a new order that reinstates enforcement of the $28,890 arrears stayed in its December 18, 2018 order. In all other respects, the order is affirmed.
Hague Convention/Attorney’s Fees and Costs
Christian Noergaard v. Tammy Noergaard
11/24/20, CA 4/3: G057332
Appellant filed three separate notices of appeal. The first appeal is from the judgment on the Hague petition (Case No. G057332). The second appeal is from the fees award (Case No. G057363). The third appeal (Case No. G058095) is from two post-judgment orders: the July 26, 2019 order sealing the confidential interview transcript, and the May 9, 2019 order sealing Appellant’s February 7, 2019 motion quoting from that transcript. Appellant’s motions to consolidate her three appeals is granted.
Appellant’s appeal from the judgment on the Hague petition challenges the return order on enumerable grounds, however, Article 4 of the Convention (article 4) states: “The Convention shall cease to apply when the child attains the age of 16 years.” The United States Department of State has interpreted the Hague Convention consistent with the clear wording of article 4: “The Convention applies only to children under the age of sixteen (16). Even if a child is under sixteen at the time of the wrongful removal or retention as well as when the Convention is invoked, the Convention ceases to apply when the child reaches sixteen.” The parties’ minor child turned 16 years old soon after the trial court rendered its final decision on the Hague petition. At her 16th birthday, the Hague Convention no longer applied. In other words, even if the trial court had erred somehow in the Hague proceeding, the appeals court is powerless to provide any effective relief from the return order. Accordingly, Appellant’s appeal of that order is dismissed as moot.
Although case law clearly supports the conclusion courts have no power under the Convention to order the return of a child who has attained the age of 16 (see above), there is no case directly addressing whether a court in a Hague proceeding has the power to decide a prevailing party’s motion for fees and costs, or to review an order for fees and costs, after the child turns 16. Nonetheless, the appeals court held that so long as the trial court issued a return order before the child’s 16th birthday, as happened here, the court has the power to rule on the prevailing party’s motion for fees and costs under Article 26 and the International Child Abduction Remedies Act (ICARA).
Appellant challenges the fees award on multiple grounds. These include the trial court’s failure to enforce the notice requirements of Code of Civil Procedure section 1005 and Appellant’s resulting lack of a meaningful opportunity to review and effectively oppose Respondent’s fees motion. The trial court’s determination to rule on the fees motion before “losing jurisdiction” not only severely impacted Appellant’s due process rights, but also the court’s ability to exercise its important discretionary function of deciding the proper amount of fees and costs to award Respondent. The appeals court held that the fees award must be reversed and remanded for a new hearing. The post-judgment sealing orders are affirmed.
DEPENDENCY (current through 12/17/2020)
By: John Nieman
In re T.G.
12/8, CA 2/7: B303987
This is an Indian Child Welfare Act (ICWA) case. At the detention hearing information was obtained by the court and all parties indicating a significant possibility that the ICWA might apply. Subsequently, no ICWA notice was sent. Guardianship was ordered at the W&I §366.26 hearing from which this appeal was filed. Failure to notice according to requirements of the ICWA required a conditional reversal. This case holds primarily that the Social Services Agency’s obligation to inquire into the possible applicability of the ICWA was not diminished by the passage of AB3176 in the 2017-2018 legislative session, as was concluded by the In re Austin J. (2020) 47 Cal.App.5th 870 court. Secondarily, it holds that even a “mere biological father,” who does not have Native American ancestry, has standing to appeal a lower court’s decisions in relation to the ICWA.
In re Christopher L.
11/24, CA 2/1: B305225
Depublication of In re S.P., (2020) 52 Cal.App.5th 963, caused the Christopher L. Court to modify its opinion by removing all reference to and reliance upon In re S.P. Since it did not alter its holding, the effect of the depublication of In re S.P. merely reduces the strength of the argument that permits reliance on the Watson (People v. Watson (1956) 46 Cal.2d 818) standard of review of harmless error analysis. Presumably, it also simultaneously bolsters the case that the Chapman (Chapman v. California (1967) 386 U.S. 18, 24) standard of “harmless beyond a reasonable doubt” is more appropriate.