Family Law

Recent Family Law Cases

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FAMILY LAW (current through 4/23/2023)
By:  Andrew Botros, CFLS

The precise holdings in a given case are bolded.

In re L.C.

In re L.C.
04/18/2023, CA 2/5: B322778

In this dependency case addressing the UCCJEA, the mother appealed from the termination of parental rights as to two of her children. She argued that the “juvenile court failed to determine whether it had jurisdiction over the children under the” UCCJEA. Los Angeles County, relying on In Re J.W., responded that by “failing to raise the issue below, mother forfeited her right to raise it on appeal.” In the alternative, the County argued that “substantial evidence [supported] the court’s assertion of jurisdiction in this case.”

The Court of Appeal concluded that “the forfeiture doctrine does not bar mother’s challenge to the juvenile court’s compliance with the UCCJEA and the error requires conditional reversal of the parental rights termination orders with directions to the court to undertake the process that the UCCJEA requires.”

According to In re J.W., the doctrine of forfeiture can defeat an appeal if a party fails to raise the issue at the trial court because UCCJEA jurisdiction is not fundamental subject matter jurisdiction. This case, however, held that In re J.W. “does not settle the matter because its analysis [was] focused only on the answer to a limited question.” Accordingly, even “if it is true that the UCCJEA does not concern issues of fundamental jurisdiction that cannot e forfeited, In re J.W. says nothing about whether there are other reasons why the forfeiture doctrine should not apply to the UCCJEA issue raised in this appeal.” These reasons include “forfeiture rules generally, the comity-driven purpose of the UCCJEA, and the comprehensive statutory scheme that our Legislature enacted when adopting the UCCJEA.”

The Court of Appeal next noted that the application of the forfeiture doctrine, which serves to “encourage parties to bring errors to the attention of the trial court so that they may be corrected” there, is “not automatic.” This case appears to add another explicit reason why the doctrine of forfeiture should not apply on appeal: “when it would be incompatible with the fundamental purposes of a statutory scheme.”

The trial court noted that the UCCJEA “places a greater degree of focus on the actions a court itself must undertake, rather than actions required of the parties.” Accordingly, the “independent obligations imposed by the UCCJEA on a court making custody decisions support the imposition of a corollary duty to be attuned to UCCJEA issues even without proactive advocacy by litigants.”

The Court noted that applying forfeiture here would lead to substantial costs because “the comity-driven purpose of the UCCJEA is to avoid jurisdictional conflict between states, promote interstate cooperation, litigate custody where the children and family have the closest connections, avoid re-litigation of another state’s custody decisions, and facilitate enforcement of another state’s custody decrees.” If the forfeiture doctrine were applied in other states as well as in California, “the number of jurisdictional conflicts and potentially inconsistent judgments among states would rise…”

The Court “reverse[d] the prior orders conditionally and [remanded] the matter with instructions to comply with UCCJEA procedures.

Concurring Opinion

Justice Moor concurred with the majority,but felt that “appellate forfeiture is not incompatible with the UCCJEA statutory scheme.” Since this was a dependency case, however, the relaxation of the forfeiture rule was warranted, particularly because the Mother was not silent about her connections to other states.

*Author’s Note: The issue of whether or not UCCJEA jurisdiction is forfeitable/waivable is something I have taken a particular interest in. (See Andrew Jack Botros, The UCCJEA, the PKPA, and Preemption: Why the Jurisdictional Provisions of the UCCJEA Cannot Be Waived (2021) 34 J. Am. Acad. Matrim. Law. 35.) In this article, I argued that allowing UCCJEA jurisdiction to be forfeited/waived would “dramatically undermine”…”[t]he goals of the UCCJEA to avoid conflicting orders and competing jurisdiction, to discourage the use of the interstate system for continuing controversies over child custody, to avoid relitigating custody decisions of other states, and to facilitate the enforcement of custody decrees of other states.”

I was taken aback when In re J.W., stated, although in dicta, that UCCJEA jurisdiction was not fundamental subject matter jurisdiction as was thus subject to waiver/forfeiture. In A.W. v. Superior Court, the Court of Appeal granted our writ petition, holding that “[t]he public policy considerations at issue in J.W. that formed the basis for its decision to prioritize the dependency scheme over the UCCJEA are not present here.” (A.W. v. Superior Court (2021) 63 Cal.App.5th 343, 354.) Although our brief was quite critical of In re J.W., the A.W. opinion was not.

In re L.C. is different. Reading between the lines, it is openly critical of the interstate enforcement conundrum that inevitably results from the failure to acknowledge that UCCJEA jurisdiction is fundamental subject matter jurisdiction.

I should mention that the concurring opinion, and even the majority opinion, fail to address what is, in my view, the biggest problem that results from allowing UCCJEA jurisdiction to be forfeited/waived. Such an approach is fundamentally flawed because it fails to consider the implications of federal preemption arising out of the Parental Kidnapping Protection Act (“PKPA”). The result of this preemption is that, first, custody and visitation orders that are allowed to stand despite their jurisdictional defects are, at best, only entitled to recognition or enforcement within the territorial borders of a state that makes such an order and, second, a state that issues an order inconsistent with the jurisdictional provisions of the PKPA/UCCJEA must disregard its own orders when that order conflicts with an order made in accordance with the PKPA/UCCJEA. This result follows because the PKPA only requires states to recognize custody and visitation orders that are made consistently with the jurisdictional provisions of the PKPA and because the jurisdictional provisions of the PKPA and UCCJEA are consistent with each other. To learn more, you can click on the link to my journal article above.

A.F. v. Jeffrey F.

A.F. v. Jeffrey F.
4/14/2023, CA 4/1: D079919

In this case, A.F. was a minor child who, after she was 12 years old, brought a restraining order request on her own behalf against her father (rather than through a guardian ad litem). The trial court appointed minor’s counsel under Family Code section 3151 in anticipation of changes to custody and visitation that could result from the outcome of the domestic violence restraining order request. A.F., however, retained her own attorney, Aaron Smith, to represent her in the DV matter. She had been represented by a different attorney, Edward Castro (who was retained prior to her turning 12, by her guardian ad litem and Mother) but Castro was disqualified due to an alleged violation of Rule 1.7 regarding concurrent representation of A.F.’s Mother and A.F. That disqualification was reversed in A.F. v. Jeffrey F. (2022) 79 Cal.App.5th 737.

In the present appeal, the trial court rejected the resulting fee agreement between A.F. and Aaron Smith attorney “for numerous reasons, including that there was a potential conflict of interest from having her maternal grandfather serve as a third-party guarantor.” The trial court also interviewed A.F. and “determined she was not competent to retain counsel independently” and found that Smith did not meet the requirements detailed by rule of court 5.242 to serve as minor’s counsel. Accordingly, the trial court removed Smith, appointed a different minor’s counsel in the DV matter, and prohibited Smith from replacing the minor’s counsel.

A.F. appealed, “contending that the matter of selecting her attorney should have been automatically stayed pending the outcome of the appeal of the court’s order disqualifying Castro. She also contends it was error to appoint a ‘minor’s counsel’ in the DV matter; it was improper to disqualify her attorney based on the rejection of the fee agreement and the lack of Smith’s qualifications in compliance with Rule 5.242; and her due process rights were violated because the court interviewed her without notice or an opportunity to be heard.”

The Court of Appeal concluded that the trial court “had subject matter jurisdiction to act in the DV matter while the first appeal was pending because [Castro] substituted out of the case.” However, it reversed “the order appointing a ‘minor’s counsel,’ which is improper in a DV matter where a minor seeks a restraining order under the Domestic Violence Prevention Act (DVPA) (Fam. Code,3 § 6200 et seq.).” It affirmed the trial court’s order “voiding the agreement between A.F. and Smith and removing Smith as her attorney on the basis that A.F. lacked competency to select her attorney independently.” Nevertheless, it “reversed[] the order prohibiting Smith from serving as A.F.’s attorney in the matter because it was an abuse of discretion to completely disqualify him on the basis that the court rejected the fee agreement or that he failed to meet the requirements of Rule 5.242.” Finally, it held that although the trial court failed to provide proper notice to A.F. before interviewing her,” that error was not prejudicial.

The Court of Appeal noted that “[u]nlike statutes in the dependency context, nothing in the DVPA expressly authorizes a minor to select an attorney independently.” The Court of Appeal agreed with the trial court that “a minor’s competency is a prerequisite to retaining counsel of his or her choosing, and because the court found A.F. lacked competency and capacity to contract with Smith, its removal of Smith did not abuse its discretion.” Nevertheless, “its prohibition on Smith serving as an attorney for A.F. in the DV matter under any circumstance was error.” “While the [trial] court appropriately considered the impact of Smith’s continued representation in the matter,” it abused its discretion when it relied on “the factors detailed in Rule 5.240 and the requirements in Rule 5.242, which ‘governs counsel appointed to represent the best interest of the child in a custody or visitation proceeding under Family Code section 3150.’ Those standards address appointment of a ‘minor’s counsel,’ who…serves a different role for a different purpose than retained counsel in a DVRO matter. Rules 5.240 and 5.242 do not control the court’s inquiry in this context. Thus, the reliance on Smith’s failure to comply with Rule 5.242 as a basis for his disqualification was an abuse of discretion.”

A.K. Peterson v. K. Thompson

A.K. Peterson v. K. Thompson
03/29/2023, CA 1/2: A157874

In this custody case, Mother appealed an order requiring her to share in the expense of a court-ordered child custody evaluator who was appointed under Evidence Code section 730 in connection with a long-running custody dispute with the father of her minor daughter. She contended, as she did in the trial court, “that given her financial condition, the court erred when it re-allocated a portion of that expense to her after the fact.” The Court of Appeal concluded that, consistent with Family Code sections 270 and 2030 et. seq.,  “in allocating the costs of a court-appointed child custody evaluator, the court must consider the parties’ ability to pay, whether the child custody evaluator is appointed by the court under Evidence Code section 730 or under the more specific provisions of the Family Code (Family Code sections 3111 to 3112).” Since “the record [did] not indicate that the trial court considered all of mother’s expenses before ordering her to contribute” to evaluation, the matter was remanded back to the trial court for a new hearing.

The Court of Appeal made several comments about the use of Evidence Code section 730, rather than Family Code section 3111, to appoint a child custody evaluator. For instance, Evidence Code section 730 does not contain “specific confidentiality protections and procedural mechanics governing the use and admissibility of the report of an evaluator appointed under Family Code section 3111.”

It was particularly puzzled by “the manner of compensating child custody investigators appointed under the Family Code [section] 3111] differs significantly from that of experts appointed in civil cases under Evidence Code section 730”:

“(a) Where a court-appointed investigator is directed by the court to conduct a custody investigation or evaluation pursuant to this chapter or to undertake visitation work, including necessary evaluation, supervision, and reporting, the court shall inquire into the financial condition of the parent, guardian, or other person charged with the support of the minor. If the court finds the parent, guardian, or other person able to pay all or part of the expense of the investigation, report, and recommendation, the court may make an order requiring the parent, guardian, or other person to repay the court the amount the court determines proper.

(b) The repayment shall be made to the court. The court shall keep suitable accounts of the expenses and repayments and shall deposit the collections as directed by the Judicial Council.”

Family Code section 3112 thus (1) imposes an affirmative duty on courts to assess a party’s ability to pay the expenses associated with a child custody investigation or evaluation; (2) makes a party’s contribution towards those expenses discretionary, not mandatory, even if the party has the ability to pay; and (3) presumes the court may initially bear the costs of an evaluation and so specifies that repayment is to the court, not a private party, thus placing the initial obligation to determine the amount of compensation and to compensate such evaluators with the court itself, not the parties.”

The Court of Appeal openly questioned whether “Evidence Code section 730 even applies to such experts given the Legislature’s more specific statutory authorization to appoint them under the Family Code.”

The Court of Appeal ultimately construed “Evidence Code sections 730 and 731, subdivision (c), at least in the context of custody proceedings, in a manner consistent with Family Code section 3112 and rule 5.220(d)(1)(D) and (e)(1)(E) of the California Rules of Court, to mandate an ability to pay determination when allocating between the parties the costs of such an expert.”

Rivera v. Hillard

Rivera v. Hillard
03/29/2023, CA 1/4: A163818

This is an appeal of a domestic violence restraining order and a resulting restitution order under the DVPA.

The Court of Appeal concluded that it lacked jurisdiction to hear the appeal of the restraining order itself because the notice of appeal was untimely filed. Code of Civil Procedure section 904.1 makes any order granting an injunction immediately appealable. Wife argued that the restraining order was not final for purposes of appeal until the restitution/attorney fee order was determined. An order granting a preliminary injunction, however, “is immediately appealable” and “the fact that final judgment remains to be entered does not extend the time to appeal…[n]or does the issuance of later orders on related issues extend the time to appeal separately appealable, earlier orders.”

Wife also argued that she could collaterally attack the restraining order on the grounds that there were unusual circumstances that precluded earlier challenge of the judgment. The Court of Appeal disagreed, noting that no such circumstances existed in this case.

The Court of Appeal next agreed with Husband that to the extent Wife complained that the trial court was biased against her, Wife’s motion for disqualification could only be challenged by writ petition and it was too late to challenge that writ under Code of Civil Procedure section 170.3.

Wife next contended that the family court “exceeded its statutory authority, under section 6342, when it ordered restitution not just for [Husband’s] lodging and auto expenses, but for items” wrongfully removed or damaged by Wife.

Section 6342 authorizes “[a]n order that restitution be paid to the petitioner for loss of earnings and out-of-pocket expenses, including, but not limited to, expenses for medical care and temporary housing, incurred as a direct result of the abuse inflicted by the respondent or any actual physical injuries sustained from the abuse.”

Section 6342, subdivision (b), however, precludes any award of restitution for “damages for pain and suffering.” The Court of Appeal further noted that “the Family Code does not define ‘restitution,’ ‘lost earnings,’ or ‘out-of-pocket expenses.’”

The Court noted that restitution is a broad term commonly understood to mean “the act of making good, or of giving an equivalent for, loss.” Restitutive damages “are quantifiable amounts of money due an injured private party from another party to compensate for the pecuniary loss directly resulting from the second party’s violation of law [Citation]. By contrast, general compensatory damages (e.g., for emotional distress) ‘are not pecuniarily measurable, defy a fixed rule of quantification, and are awarded without proof of pecuniary loss.’ [Citation].”

In this case, Wife violated the DVPA by taking money and personal property from Husband’s residence, noting that “abuse” includes destruction of property and “disturbing another party’s peace through ‘coercive control’ of ‘the other party’s finances [or] economic resources’.” Since the evidence supported that these losses incurred as a direct result of the abuse, the restitution award was appropriate.

Wife next argued that “out-of-pocket” expenses should be read to exclude costs other than medical care or temporary housing. The Court of Appeal disagreed, noting that Family Code section 6342 explicitly permits restitution “including but not limited to” expenses incurred for medical care and temporary housing. Further, the legislature’s express prohibition on damages for pain of suffering “implies that other types of damages are available.”

The Court of Appeal also noted that DVPA actions are to be “resolved in proceedings that are, to the extent possible, streamlined, accessible and expeditious” and further noted that they commonly involve self-represented litigants. It concluded that Joanna’s narrow reading of section 6342 would undermine those efforts, requiring litigants to file a separate civil action. Further, that civil action does not have the self-help resources provided by the state to help self-represented litigants navigate DVPA actions.

Finally, the Court of Appeal rejected Wife’s contention that the trial court impinged on the Virginia court’s jurisdiction over the parties’ MSA, as their dissolution proceedings originated in Virginia. The trial court noted that the trial court “declined to modify or enforce the MSA or to characterize of divide property.”  Her constitutional full faith and credit challenge was rejected for the same reason.

Wife’s claim that she was deprived of due process by Husband’s failure to plead a claim for restitution in his original DVRO request was also rejected. Family Code section 6342 only requires “notice and a hearing.” Wife had ample notice of the hearing and time to respond to David’s detailed accounting. It would also be “highly inequitable to require the degree of specificity advocated by Wife” considering that Husband was not able to access the residence and could not assess his losses.

Finally, the Court of Appeal concluded that the trial court’s conclusion that Wife “improperly obtained sole possession of the [family residence]” was supported by the evidence because even if she did have an ownership interest in the home, she concealed an agreement that Husband was to have exclusive use and possession of the home. She accordingly lacked a “right under color of law to possession of the premises” under Family Code section 6321, even if she did have an ownership interest.

Karen Deck v. Developer’s Investment Company, Inc.

Karen Deck v. Developer’s Investment Company, Inc.
03/24/2023, CA 4/3: G061287

In this elder abuse case, the defendants appealed monetary and issue sanctions awarded by the trial court. The appeal of the monetary sanctions was affirmed, and the appeal of the issue sanctions was dismissed.

Issue Sanctions

Although monetary sanctions exceeding $5,000 are directly appealable under Code of Civil Procedure section 904.1, there is no “comparable statutory right to appeal from a prejudgment discovery order.” That would be appealable from the final judgment. Accordingly, the issue sanctions order was not appealable. Appellant’s, however, argued that, according to Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, if the monetary sanctions and issue sanctions were inextricably intertwined, the Court of Appeal could hear them both.

The Court of Appeal concluded that the monetary sanctions and issue sanctions were not inextricably intertwined such that the Court of Appeal could hear both the monetary sanctions and issue sanctions together. In Mileikowsky, “the monetary sanctions were based on the same conduct that led to terminating sanctions…In particular, the plaintiff had challenged the monetary sanctions on the ground they were based on the fees and costs incurred in prosecuting the motion for terminating sanctions, and that motion should have been denied.” In other awards, a decision on the appeal from the monetary sanctions also resolved the appeal from the terminating sanctions.

Although the monetary sanctions and issue sanctions in this case are based on the same conduct, “they are not inextricably intertwined” because they are “different remedies, imposed for different reasons, and the propriety of each is assed under different factors.” “[T]he only issue with respect to imposition of monetary sanctions is whether the trial court should have found Defendants acted with substantial justification or other circumstances would make monetary sanctions unjust.”

Monetary Sanctions

In affirming the monetary sanctions order, the Court of Appeal noted that the appellants complied after the motion was filed. The Court of Appeal, however, commented that “[u]ntimely compliance [with discovery deadlines] is not compliance.” It also rejected their claim that discovery was oppressive, as their recourse was to seek a protective order. Finally, the Court of Appeal rejected the argument that there was no prejudice, as prejudice is not a required to recovery monetary sanctions.

*Author’s Note: Have you ever had a party comply with discovery after you had to file a motion to compel? I certainly have, and I intend to use the line, “Untimely compliance is not compliance” from this case the next time it happens.

Segal v. Fishbein

Segal v. Fishbein
03/22/2023, CA 4/1: D080578

This is both a UCCJEA case and a Family Code section 217 case. In this case, Fishbein argued that since all the parties and the minor child had relocated to California from Virginia, California could exercise modification jurisdiction under Family Code section 3423 to modify the Virginia order. Accordingly, he contended that the trial court erred when it concluded that the Virginia family court had not lost its continuing, exclusive jurisdiction under the UCCJEA.

The parties essentially had an alternating schedule of sharing their child in different parts of the country and the world. They were employed with the United States State Department of Foreign Services and their custody agreement “addressed how the parents would handle their rotating employment postings to various cities.” As a result, the child “has lived in a number of locations with her parents, including Arlington, Virginia; Tokyo, Japan; Singapore, and San Diego, California. Most recently, the child moved to Singapore with Segal in 2019 and then, pursuant to the custody order, moved to San Diego with Fishbein in June 2021.” Segal also moved to San Diego in the summer of 2021 so she could be nearer to the child.

Having found that Fishbein was unable to produce any documentation showing that Fishbein could “telework from San Diego,” the Virginia court granted, on February 8, 2022, Segal’s motion to reconsider so that the child would remain in San Diego only until the end of the June 2022 school year. Afterwards, the child would be permitted to relocate to Virginia assuming Segal still had her job with the State Department.

In March of 2022, Fishbein filed his modification request in California, requesting that the child remain permanently with him in San Diego. The California trial court had a conference with the Virginia judge and both judges agreed that Virginia had not relinquished jurisdiction. The California Court vacated Fishbein’s modification request. Fishbein had asked the California court to ask Segal three questions before determining jurisdiction. That request was denied.

Motion to Dismiss

Segal first argued that the appeal should be dismissed because Fishbein’s writ petition requesting the same relief on the same order was denied. However, “[a] summarily denied writ does not preclude the filing of a subsequent appeal on res judicata grounds.”

Segal next argued that since she and the child were living in Virginia, the appeal was moot.  However, since “Segal’s motion to dismiss necessarily implicates a review of the record and the merits of the appeal,” they considered the motion with the merits.

Jurisdiction under the UCCJEA

In this case, “the parties [did] not dispute that Virginia assumed initial jurisdiction over their child custody dispute.”  Instead, they disputed “whether the California court erred by deferring to the Virginia court’s determination that Virginia would retain that jurisdiction.”  Fishbein argued that “that California ‘was required’ to assume jurisdiction from Virginia because Segal admitted that she and A.F. [the child] had moved to California in approximately June 2021.” Segal, however, contended that “the California court correctly found it lacked jurisdiction because the Virginia court declined to cede its jurisdiction to California, and moreover, Segal’s intent to return to Virginia in June 2022 meant that she still ‘presently resided’ there.” The Court of Appeal “agreed[] with Segal…”

In this case, “because a child custody proceeding had already been commenced in Virginia,” Family Code section 3426 “required the California court to consult with the Virginia court about jurisdiction.” Once Virginia “determined that it would retain jurisdiction—that California was not a ‘more appropriate forum’—the California court was required to dismiss the proceeding.” Put another way, “the California court was statutorily required to deferto the Virginia court’s decision not to cede jurisdiction to California.” In a footnote, the Court of Appeal “rejected Fishbein’s unsupported contention that because a modification of custody proceeding had not been actively ‘pending’ in Virginia since February 2022 at the time he filed in California court in March 2022, A.F.’s Virginia home state somehow changed to California.” This is because the “Virginia court did not ‘terminate or . . . stay[ ]’ the custody proceeding because California was “a more convenient forum under section 3427.” 

The Court of Appeal concluded that “Fishbein fails to explain how, under the UCCJEA, the California court could have disregarded the Virginia court’s decision to retain jurisdiction.” Further, “[t]o the extent Fishbein contends the Virginia court’s jurisdictional determination is erroneous, his argument is with the Virginia court, not the California court.”

The Court first noted that Family Court section 3422 could not apply because a Court must have made a prior determination before it could exercise continuing, exclusive jurisdiction. Family Code section 3423 complements 3422 “by restricting the conditions under which one state may modify the custody orders of another state.”

In relevant part, Family Code section 3423 provides “a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under [section 3421, subdivision (a)(1) or (a)(2)] and either of the following determinations is made:  (a) The court of the other state determines it no longer has exclusive, continuing jurisdiction under Section 3422 or that a court of this state would be a more convenient forum under Section 3427, or (b) A court of this state or a court of the other state determines that the child [and all parents] do not presently reside in the other state.”

California could not assume jurisdiction under Family Code section 3423 because, according to Segal’s declaration, she “never stopped residing in Virginia and was in California only ‘temporarily’ with plans to return to Virginia with the child in June 2022.” “The question central to Fishbein’s theory is not whether Segal ‘resided’ in California at the time he filed his California request to modify, but instead, whether Segal had stopped residing in Virginia.”

Family Code section 3410

The Court of Appeal next concluded that the California court fulfilled the requirements under Family Code section 3410, which required it to give the parties “the opportunity to present facts and legal arguments before a decision on jurisdiction is made.”  Under this code section, the Court was not required to allow the parties to participate in the conference and the trial court, as required, “made a ‘written record’ of the conference via a minute order, as well as described the conference to the parties at the April 12, 2022 hearing.”

The Court of Appeal concluded that Fishbein’s reliance on Brewer v. Carter was misplaced. “Brewer considered a father’s appeal from a California court orderfinding that a different state was a more convenient forum to make a child custody determination under section 3427.  In Brewer v. Carter, the father contended, and the Court of Appeal agreed, that the California court failed to give the parties an opportunity to present evidence as required by section 3427. “Brewer’s holding does not apply here, however, because a section 3427 inconvenient forum determination [was] not at issue.”

Family Code Section 217

Fishbein contended that the Court of Appeal “must reverse because the California court denied his request to cross-examine Segal without making a finding of good cause under section 217.” The Court of Appeal, however, held that “[e]ven without a finding of good cause, the court is required to receive live testimony under section 217 only if that testimony is ‘relevant and within the scope of the hearing.’” Fishbein, however, “failed to explain with specificity, either in the trial court below or in his briefing on appeal, how cross-examining Segal about her declaration would have related to the issues underlying the California court’s jurisdictional ruling.” It was not enough for Fishbein to state cross-examination of Segal was necessary “’just to determine for the Court . . . whether or not the UCCJEA jurisdiction was appropriately determined.’”

Further, Fishbein “failed to suggest to the California court—either at the April 7 or April 12 hearings—that any facts were in dispute.  Fishbein also does not dispute that Segal intended to return to Virginia at the end of A.F.’s school year.” He was required to “explain what testimony he would have elicited to” change any alleged fact that was in dispute.

Finally, the Court of Appeal distinguished Marriage of Swain from this case. In Swain, “the hearsay exception in Code of Civil Procedure section 2009 does not apply to a motion to modify a family law judgment where . . . the opposing party seeks to exclude the declaration on the ground that he or she is unable to cross-examine the declarant.” In that scenario,  “the opposing party’s objection not only seeks to exclude hearsay evidence, but also amounts to an assertion of the party’s right under section 217 to ‘live, competent testimony that is relevant and within the scope of the hearing.’ ” Although this Court agreed with Swain’s analysis of section 217, this case was different: “In Swain, the husband specifically objected to the wife’s declaration and sought to cross-examine her.  Here, in contrast, Fishbein never objected to Segal’s declaration.  Nor did he make any unqualified request to cross-examine her about her declaration.  Rather, Fishbein’s request for live testimony was phrased as a request to ask Segal ‘three questions,’ without any explanation about what he hoped to elicit with those questions and without any suggestion that his questions were intended to test Segal’s declaration under section 217.”

*Author’s Note:Disclosure: I represented Mr. Fishbein on appeal.

I think this was a nuanced and thoughtful opinion. Our chief argument was not particularly complicated. Ms. Segal had moved to California and now the parties and the child all were in California. Further, both Ms. Segal and the child had lived in Singapore prior to coming to California. Under the facts of this case, we argued that reversal was required because either 1) Ms. Segal’s departure from Virginia meant that California had modification jurisdiction under Family Code section 3423; or 2) the broad right to take live testimony under Family Code section 217 required allowing Mr. Fishbein to cross-examine Ms. Segal on her assertion that she was still a resident of Virginia.

This case makes clear that in determining whether parties no longer presently reside in an issuing state under Family Code section 3423, the critical question is “not whether a party ‘resided’ in California at the time [he or she] filed [his or her] California request to modify, but instead, whether [he or she] had stopped residing in [the other state.]” This resolves what I saw as inconsistent language in the official comment to this section of the UCCJEA, which states, “The phrase ‘do not presently reside’ is not used in the sense of a technical domicile. The fact that the original determination State still considers one parent a domiciliary does not prevent it from losing exclusive, continuing jurisdiction after the child, the parents, and all persons acting as parents have moved from the State.”

This case, along with some other recent cases, also makes clear that although the right to cross-examine and generally adduce live testimony is broad, it is not without its limits. In particular, to preserve one’s rights to take live testimony under Family Code section 217, one should be ready with a very detailed offer of proof. Even this is not enough. As this case makes clear, you also need to object to any declarations.

Shauneen Militello v. VFARM 1509

Shauneen Militello v. VFARM 1509
03/21/2023, CA 2/7: B318397

Shauneen Militello, Ann Lawrence Athey (Lawrence) and Rajesh Manek were the co-owners of a cannabis manufacturer and distributor, Cannaco Research Corporation (CRC). In 2021, Lawrence and Manek voted to remove Militello from her position as officer and director of CRC. Shortly thereafter, Militello sued Lawrence, Manek and others, including Lawrence’s husband, under several tort theories.

Lawrence moved to disqualify Militello’s counsel, Spencer Hosie, on the ground that Militello “had impermissibly downloaded from Lawrence’s CRC email account private communications between Lawrence and Athey, protected by the spousal communication privilege (Evid. Code, § 980), and provided them to her attorneys, who then used them in an attempt to obtain a receivership for CRC in a parallel proceeding.” Militello opposed the motion, “arguing in part Lawrence had no reasonable expectation her electronic communications with her husband were confidential because she knew Militello, as a director of CRC, had the right to review all communications on CRC’s corporate network. Militello also argued disqualification is not appropriate when a lawyer has received the adverse party’s privileged communications from his or her own client.”

The trial court granted the motion, “finding that Militello had not carried her burden of establishing Lawrence had no reasonable expectation her communications with her husband would be private, and ordered the disqualification of Hosie…” The Court of Appeal affirmed.

The Court of Appeal first discussed the application of the spousal privilege. It noted that Evidence Code section 917, subdivision (a), states that when the “privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of the . . . marital or domestic partnership, . . . the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential.”

The Court of Appeal concluded that the communications between the spouses were presumptively privileged under Evidence Code section 917. Lawrence’s declaration in support of the disqualification motion attached exhibits that CRC had used in their receivership motion. She identified that those communications were intended to be between her and her husband and no one else.

The Court of Appeal also agreed that Militello failed to overcome her burden. Militello argued that “Lawrence knew the communications platform she was using was not confidential and, therefore, Lawrence had no reasonable expectation of privacy.”  Militello also “pointed to Corporations Code section 1602, which authorizes a director to inspect all books and records of the corporation of which he or she is a director; CRC’s bylaws, which essentially repeat the language of Corporations Code section 1602; and a message Google provided when CRC moved to G Suite that the domain administrator had access to all data.”

The Court of Appeal concluded that Lawrence maintained a reasonable expectation of privacy, noting that “Militello presented no evidence CRC had a policy of monitoring individual email accounts,” nor was there evidence that Lawrence agreed to such a policy. In addition, “the Google welcome message concerning the domain administrator’s ability to access data was not directed to Lawrence’s email account, and there was no evidence she ever received it.” As for the argument that Militello had a right to inspect corporate records as a director under Corporations Code section 1602, “it is by no means clear a director’s right to inspect corporate books and records includes the surreptitious review of another director’s individual email account on the company’s G Suite” as this “statutory right of inspection is to be used only to aid the performance of the director’s fiduciary duties.”

The Court of Appeal distinguished this case from Holmes v.  Petrovich Development Co. In that case, “the employee had been expressly advised communications made over her company computer were not private and would be monitored and had stated she was aware of, and agreed to, that policy.”

The Court of Appeal next addressed the contention that “Lawrence’s communications with Athey fell within Evidence Code section 981’s crime-fraud exception to the spousal communication privilege.” The Court held that the crime-fraud exception “is quite limited. It does not permit disclosure of communications that merely reveal a plan to commit a crime or fraud; it permits disclosure only of communications made to enable or aid anyone to commit or plan to commit a crime or fraud.” The evidence presented by Lawrence, however, did not “reasonably support[] an inference that the purpose of those communications was to enable or aid a fraud against Militello.”

Finally, the Court of Appeal addressed the disqualification motion. It noted that “counsel may be disqualified where counsel has obtained the secrets of an adverse party because the situation implicates the attorney’s ethical duty to maintain the integrity of the judicial process.”

“Militello makes three arguments challenging that conclusion: Lawrence’s disclosure of the contents of her emails was not inadvertent; the communications did not provide any strategic advantage to Militello, making disqualification of her counsel unduly punitive; and disqualification is not a proper response to a client’s disclosure of an adverse party’s confidential information to his or her own attorney.” All three contentions were rejected.

As to the contention that the disclosure of the contents of her emails was not inadvertent, the Court of Appeal disagreed, noting that Lawrence’s declaration “confirmed she believed her communications with [her husband] were private and stated she had not authorized their disclosure.” Further,  “[e]ven if Militello accessed and downloaded the emails believing she had a right to do so as a CRC director, the record establishes it was not done with Lawrence’s actual knowledge or permission.”

As to the contention that the communications did not provide any strategic advantage to Militello, the attorney made aggressive use of the emails in its motion for appointment of a receiver and “contended the emails provided evidence of a fraud perpetrated by Lawrence and Ashley that is the foundation for the instant lawsuit.” The Court of Appeal further concluded that “there is a very real potential that lawyers at Hosie Rice, having read the emails, as opposed to simply relying on Militello’s recollection of what they may have said, will be able to use that information throughout the litigation, for example, in drafting discovery requests and responses and preparing for trial…” Even if one could be confident the attorneys would not once again attempt to use Lawrence’s emails to its client’s advantage,” the trial court nevertheless acted within its discretion because, “given their past improper use of confidential information, allowing them to continue to represent Militello in this case ‘would negatively affect the public’s trust in both the scrupulous administration of justice and the integrity of the bar.’”

As to the contention that disqualification is not appropriate when the lawyers receive the adverse party’s privileged communications from their own client, the Court of Appeal found there was “some support in the case law” for that proposition, but that did not justify reversal. The case law did indicate that “attempting to restrict oral disclosures of that sort risks undue interference with candid discussions between the client and counsel; and disqualification would, in any event, be an ineffective remedy because the client might provide the same information to new counsel.” It was, however, “an entirely different matter if the client improperly obtained (or maintained) possession of written or digital copies of an adverse party’s confidential information and provided them to counsel for use in litigation.” Accordingly, “insisting that counsel not read purloined documents any more closely than is necessary to determine if they are privileged, as described in Rico, supra, 42 Cal.4th at pages 810 and 818 and State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 656-657, and prohibiting their use if they are, will not inhibit legitimate attorney-client conversations; and a client whose counsel is disqualified for defying such a rule is not likely to repeat the violation…On the other hand, as the trial court ruled here, to allow continued representation of a client after counsel has been provided with, and then used, improperly obtained confidential information would undermine the public’s trust in the fair administration of justice and the integrity of the bar.”

Sullivan v. Sullivan

Sullivan v. Sullivan
03/21/2023, CA 4/1: D079481

The Court of Appeal rejected the trial court’s “ruling that a service member must explicitly and specifically consent to the court’s authority to divide her military retirement under the [Federal Uniformed Services Former Spouse’s Protection Act, FUSFSPA].” It further concluded that by “voluntarily filing her dissolution petition in California, seeking a judicial confirmation of ‘all’ her separate property acquired before marriage, asking the court to determine ‘any’ community property assets, and requesting the appointment of an expert under Evidence Code section 730 to determine a proposed division of the parties’ retirement accounts,” Wife consented to the jurisdiction of the trial to divide her military pension within the meaning of FUSFSPA.

Preliminary, the Court of Appeal held that the appealed stipulated judgment was not an appealable judgment. Though a judgment entered pursuant to stipulation is ordinarily not appealable, an “an exception exists where the appellant’s consent to judgment was given merely to facilitate an appeal following the trial court’s adverse determination of a critical issue.” In this case, ”the parties here consented to the stipulated judgment to facilitate an appeal from the trial court’s 2018 ruling on [a] request for immediate payment of his community property interest in Lisa’s military retirement benefits.” The exception allowing a stipulated judgment to be appealed, however, does not apply when the “stipulated judgment fails to dispose of all claims between the parties.” The parties’ reservation of jurisdiction over spousal support and child support retroactivity in the stipulated judgment meant that not all issues were finally determined. Nevertheless, the trial court could and did exercise its discretion to treat the appeal as a writ petition.

Next, the Court of Appeal explained that it found “more persuasive the majority view that a service member need not give specific or explicit consent to the court’s jurisdiction to divide her military pension.” This was because “[F]ederal law at the time the [FUSFSPA] was enacted in 1982 recognized consent to jurisdiction could be express or implied…Had Congress intended specific consent to be a requirement, it would have been a simple matter to draft the statute to do so.”

The Court further noted that the seminal Tucker decision was consistent with its holding. This was because “the service member in Tucker was the respondent, not the petitioner who filed for dissolution and chose the forum.” Further, “[t]he service member in Tucker did not voluntarily submit himself to the court’s jurisdiction; he never expressly or impliedly consented to allow the court to divide his military pension; and his counsel explicitly objected to the court’s jurisdiction over his military pension at every stage of the proceedings, starting with his initial conversation with the petitioner’s counsel.”

*Author’s Note: You might have caught that this Court had the discretion to hear the appeal as a writ petition while there was a strict and short deadline in Rivera v. Hillard. This is because this case involved a common law writ. Common law writs do not have hard deadlines. This is in contrast to the statutory writ in Rivera v. Hillard, which was authorized under Code of Civil Procedure section 170.3. This statute provides an explicit deadline of 10 days to challenge a denial of a motion to disqualify a judicial officer.

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