Recent Family Law Cases
[Opinions available at: http://www.courts.ca.gov/opinions-slip.htm]
FAMILY LAW (current through 5/22/2021)
By: Michelle L. Kazadi, CFLS
Elizabeth Anne Wendt, Respondent v. William Nicholas Pullen, Appellant; Windham Bremer, as Trustee, Respondent
4/28/21, CA 3: C084083
Appellant, William Nicholas Pullen, appealed from the family court’s denial of his Fam. Code section 2030 motion to compel Respondent, Windham Bremer, the trustee of the Elizabeth Anne Wendt Trust, to pay his attorney fees stemming from his successful motion to join the trustee as a third party to the dissolution action involving Pullen and his ex-wife Elizabeth Anne Wendt.
Appellant Pullen contended that the family court’s ruling was an abuse of discretion as it was based on legal error, and that it effectively precludes him from further litigating the matter. Respondent Bremer countered that under California law a trustee cannot be compelled to disburse money absent a showing of bad faith. He argues that Appellant’s claim is subject to Probate Code restrictions on claims against spendthrift trusts.
“A spendthrift trust is created where the settlor gives property in trust for another, and provides that the beneficiary cannot assign or otherwise alienate his or her interest, and that it shall not be subject to the claims of the beneficiary’s creditors.” (Chatard v. Oveross (2009) 179 Ca.App.4th 1098, 1104.) “Creditors of the beneficiary generally cannot reach trust assets while those assets are in the hands of the trustee, even if they have secured a judgment against the beneficiary. Rather, creditors must wait until the trustee makes distributions to the beneficiary…” (Carmack v. Reynolds (2017) 2 Cal.5th 844, 849.)
The trial court relied on a spendthrift trust case, Ventura County Dept. of Child Support Services v. Brown (2004) 117 Cal.App.4th 144 (Ventura), to find section 2030 fees could be awarded only upon a finding of bad faith by the trustee. The appeals court held that although the attorney fees sought here were in support of litigation for potential child support payments from the spendthrift trust, any potential tension between section 2030 and Probate Code section 15305 is irrelevant to the resolution of this case because the dispute is about subject matter not covered by the spendthrift provisions of Probate Code section 15305. Ventura is nonetheless instructive as it shows it is possible that the trustee of a spendthrift trust can be compelled to disburse assets in light of countervailing public policies.
The appeals court found that there are no precedent decisions holding a spendthrift trust immune from paying debts related to the administration of the trust, and they saw no reason for recognizing such an exemption. The purpose of a spendthrift trust is to prevent dissipation of the trust’s assets by the beneficiary or the beneficiary’s creditors. It does no damage to the purpose of a spendthrift trust to allow creditors to reach the trust’s assets for payment of debts arising out of the trust’s administration.
Notwithstanding Respondent’s claims to the contrary, the request for fees and costs under section 2030 by Appellant Pullen is not contingent on claims against the trust by the trust’s beneficiary, Wendt. Rather, it is a claim against the trust for a debt arising due to the trust’s administration, the litigation regarding Appellant’s successful efforts to bring the trustee and trust into the dissolution proceeding. It is, therefore, exempt from the trust’s spendthrift provision, and the family court erred in finding it could not award fees absent a showing of bad faith by the trustee.
Reversed and remanded for additional proceedings.
J.H. v. G.H.
4/28/21, CA 1/3: A160303
Appellant G.H. appealed from an order granting her a two-year domestic violence restraining order (DVRO) against Respondent J.H. In the published portion of the opinion, the appeals court concluded the trial court did not err in excluding the parties’ children as protected parties in the DVRO.
Pursuant to Family Code section 6320, subdivision (a), a court may issue an ex parte order enjoining a party from attacking, threatening, contacting, or disturbing the peace of “the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.” Pursuant to Family Code section 6340, subdivision (a)(1), “[a] court may issue any of the orders described in Article 1 (commencing with Section 6320) after notice and a hearing.” As relevant here, the statute provides: “When determining whether to make any orders under this subdivision, the court shall consider whether failure to make any of these orders may jeopardize the safety of the petitioner and the children for whom the custody or visitation orders are sought.” (§ 6340, subd. (a)(1).) These provisions of the DVPA “confer a discretion designed to be exercised liberally.” (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.)
G.H. argued the trial court applied an incorrect legal standard by requiring a showing of probability or likelihood of future abuse before the children could be included in the DVRO as protected parties. She claimed the court excluded the children solely because it found that J.H. did not pose a current threat of abuse to them, which was the “functional equivalent of finding there was ‘no likelihood of future abuse.’”
The court of appeals disagreed that the trial court applied an incorrect legal standard. In declining to include the children as protected parties, the court provided two reasons: (1) it did not believe J.H. presently posed any threat or danger to the children; and (2) it wanted the children and J.H. to begin working on repairing their relationship, which the court felt was in the children’s long-term best interests. The trial court’s consideration of whether J.H. presently posed a threat to the children’s safety or well-being was not error. As indicated, and as G.H. acknowledges, when determining whether to issue an order under Family Code section 6340, one relevant consideration is whether failure to issue the order “may jeopardize the safety of the petitioner and the children for whom the custody or visitation orders are sought.” (§ 6340, subd. (a)(1).) A court must also consider the totality of the circumstances. (§ 6301, subd. (c).) Thus, the issue of whether or not J.H. posed a present threat or danger to the children was surely a relevant circumstance among the totality of circumstances. Affirmed.
Lisa Kelpe v. Nicholas Charles Kelpe
5/11/21, CA 6: H045089
In issue on this case is the characterization of a lump-sum cash payment Respondent received from a retirement plan upon leaving his employment with an accounting firm after a marital dissolution. The appeals court concluded that the payment was not an enhanced community benefit derived from the retirement benefits Respondent accrued during the marriage. Rather, the payment was an additional benefit Respondent acquired when he became a partner in the firm, which occurred after the parties’ date of separation.
It is undisputed that Respondent acquired a property interest in the deferred compensation retirement plan as part of and upon the commencement of his partnership agreement, after he and Appellant had separated. Respondent was not eligible for the deferred compensation retirement plan until his post-separation entry into the partnership, so there is no way the community could have acquired or accrued an interest in the plan. As a distinct and separate benefit available only to partners, the deferred compensation retirement plan was in addition to and not derivative of the retirement benefits available to Respondent while a non-partner employee. The deferred compensation retirement plan may have “enhanced” Respondent’s overall retirement portfolio, but it was a stand-alone contractual benefit. The appeals court rejected the argument that Respondent’s right to receive the deferred compensation retirement plan partnership benefit accrued during the marriage because he “needed to count the 13 years of community service to qualify for any benefits under the plan.” The trial court correctly concluded that even where a benefit is dependent in part on total years of service accrued during marriage, if the contractual right to the benefit is not acquired until after separation, the benefit is separate property. (See Marriage of Frahm (1996) 45 Cal.App.4th 536, 544–545.)
The Supreme Court has made clear that the time rule is employed to apportion retirement benefits between the community and the employee spouse when the benefits are earned both during and after marriage. (In re Marriage of Lehman (1998) 18 Cal.4th 169, 187; accord In re Marriage of Gowan (1997) 54 Cal.App.4th 80, 88.) The time rule does not apply here because the deferred compensation retirement plan benefit is entirely Respondent’s separate property, having accrued after the parties had separated. Affirmed.
Michael O’Shea v. Susan F. Lindenberg et al.
5/14/21, CA 4/3: G058997
Appellant, Michael O’Shea, hired attorney, Susan F. Lindenberg, Respondent, to represent him in a child support action. After Appellant’s ex-wife was awarded what he believed to be an excessive amount of child support, he filed this action. He alleged, among other things, that Respondent was negligent in her representation because she failed to retain a forensic accountant. The case went to trial and the jury concluded, in a special verdict, that Respondent owed a professional duty of care that she breached. The jury was unable to agree, however, on whether the breach of duty caused Appellant damage, and the judge declared a mistrial. Appellant moved for a directed verdict on the grounds that the evidence presented at trial did not support a finding of causation, specifically, that without the alleged malpractice, Appellant would have received a better result. The trial court agreed and directed a verdict in Respondent’s favor.
A motion for a directed verdict may be granted when “the court…determines there is no evidence of sufficient substantiality to support the claim or defense of the party opposing the motion, or a verdict in favor of that party.” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 629-630.) “The function of these motions is to prevent the moving defendant from the necessity of undergoing any further exposure to legal liability when there is insufficient evidence for an adverse verdict.” (Fountain Valley Chateau Blanc Homeowner’s Assn. v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 750.). “A motion for a directed verdict ‘is in the nature of a demurrer to the evidence, and is governed by practically the same rules, and concedes as true the evidence on behalf of the adverse party, with all fair and reasonable inferences to be deduced therefrom.’” (Fountain Valley Chateau Blanc Homeowner’s Assn. v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 750.) “In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded….” (Colbaugh v. Hartline (1994) 29 Cal.App.4th 1516, 1521.)
As for the relevant requirements in a legal malpractice case, the plaintiff must generally establish “(1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney’s negligence.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199-1200.) Causation in a professional malpractice context means establishing by a preponderance of the evidence that, but for the negligence, “the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred. The purpose of this requirement, which has been in use for more than 120 years, is to safeguard against speculative and conjectural claims.” (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.).
The general rule is that expert evidence is required to establish legal malpractice. (Unigard Ins. Group v. O’Flaherty & Belgum (1995) 38 Cal.App.4th 1229, 10 1239; Wilkinson v. Rives (1981) 116 Cal.App.3d 641, 647-648.) The need for expert testimony has particular force where the attorney, as here, holds himself or herself out as a specialist: “Where…the malpractice action is brought against an attorney holding [him or herself] out as a legal specialist and the claim…is related to [his or her] expertise as such, then only a person knowledgeable in the specialty can define the applicable duty of care and opine whether it was met.” (Wright v. Williams (1975) 47 Cal.App.3d 802, 810-811.) There is an exception when the alleged malpractice is so utterly egregious and obvious that no expert testimony is needed. (Goebel v. Lauderdale (1989) 214 Cal.App.3d 1502.)
After reviewing the evidence in accordance with the applicable standard of review, the appeals court found that Appellant failed to present sufficient testimony on the issue of causation, and therefore affirmed the trial court’s judgment.
DEPENDENCY (current through 5/20/2021)
By: John Nieman
In re A.T.
4/20/21, CA 1/3: A160454
This case involves the ICWA and UCCJEA. Mother brought child to CA from WA in violation of WA’s family court’s custody orders. Child removed from mother after W&I 300 petition filed in CA. The CA juvenile court had at least temporary emergency jurisdiction under the UCCJEA. Child temporarily placed with Fa. after a brief stay elsewhere by CA juvenile court. The WA family court found Mo. in contempt and placed the child with the father. The WA and CA judges conferred as appropriate under the UCCJEA and decided that WA should have exclusive jurisdiction over the family. The placement of the child with the father by the CA juvenile court precluded application of the ICWA for purposes of the dependency case (it being inapplicable where a child is placed with a parent). The juvenile court never took formal (non-emergency) jurisdiction, and upon dismissal of the W&I 300 petition, left the WA family court with exclusive jurisdiction.
In re Ma.V., et al
5/6/21, CA 4/3: G059433
Mother appealed the jurisdiction findings and disposition removing children from her care and custody. Issues alleged included exposure of the children to domestic violence, substance abuse, and both the mother’s and Ma.’s mental health problems. The appellate court basically found that while all of those problems might have existed in the past, none of them were enough of an issue by the time jurisdiction was decided to justify the taking of jurisdiction. Despite not finding adequate evidence to support the jurisdictional findings, the appellate court went on to find inadequate reasons to justify removal. Aside from the same stale issues that did not justify taking jurisdiction, the appellate court cited clear evidence that grandmother was a support person who the mother readily utilized for help with the children – which prevented the need for removal. The appellate court went on to emphasize that victims of domestic violence (here, the mother) must not be punished for speculation about future possible domestic violence. In this case, the mother had ended the relationship with the perpetrator and not engaged with another romantic partner.
In re S.R. et al
5/18/21, CA 4/2: E076177
This case involves the Indian Child Welfare Act (ICWA). At the outset of the case, parents indicated no native American ancestry, and findings were made accordingly. Subsequently, maternal grandparents with whom the children were proposed to be placed, filled out a form indicating to the Social Services Department potentially significant native American ancestry. It is unclear from the opinion if the form or its information were ever presented to the trial court. The Department made no further inquiry into application of the ICWA as the law requires, and the court maintained its original finding that the ICWA did not apply. Subsequent to placement with the grandparents, parental rights were terminated. The Court reversed and remanded exclusively to determine whether or not the ICWA was applicable after appropriate inquiry.