Family Law

Recent Family Law Cases

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FAMILY LAW (current through 7/21/2023)

By:  Andrew Botros, CFLS

The precise holdings in a given case are bolded.

Malinowski v. Martin

07/14/23 CA 1/3: A164713

In this case, the Court of Appeal considered whether a DVTRO could only be modified within the confines of Code of Civil Procedure section 533.

Code of Civil Procedure section 533 provides:

In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order.

In this case, Malinowski argued that “the trial court did not conduct a noticed evidentiary hearing pursuant to section 533 before it modified the no-contact and stay-away provisions of the DVTRO to allow for exceptions consistent with the child visitation ordered in the dissolution proceeding.”

The Court of Appeal, however, concluded that the trial court was not constrained by Code of Civil Procedure section 533 in making its modification.

It reasoned, first, that this was a modification made pending a hearing on the merits of the issuance of a “permanent” DVRO. Family Code section 245 states that, in granting a continuance on a DVRO hearing, “the court may modify or terminate a temporary restraining order.” The lack of any reference to Code of Civil Procedure section 245 meant that it “confers such discretion without reference to any of the procedural or substantive requirements of section 533.”

The Court of Appeal next distinguished Loeffler v. Medina (2009) 174 Cal.App.4th 1495. That case reasoned “when a restrained party seeks to terminate a DVRO, the burden is on that party ‘to show by a preponderance of the evidence that one of the circumstances set forth in [section 533] is present and justifies a termination of the restraining order.’” Loeffler, however, involved a “motion to terminate a permanent DVRO issued after notice and hearing,” not a “prehearing request to modify a DVTRO pending a continued merits hearing.” Further, in Loeffler, there was an “underlying factual dispute about the threat of future abuse, thereby making relevant any changed facts or circumstances that would justify termination of the DVRO.” In this case, however, the trial court made exceptions to the DVTRO to “allow for court-ordered visitation pending the DVRO trial…based largely on the undisputed fact that the dissolution court had already entered a visitation order allowing Martin to have certain contact with the children.” It was reasonable “for the trial court to defer to and avoid inconsistent rulings” with the court in the dissolution matter given that court’s familiarity with the parties and the case. Finally, Loeffler did not hold that section 533 was the exclusive means to modify or dissolve a restraining order.

The Court of Appeal found Yost v. Forestiere (2020) 51 Cal.App.5th 509 instructive. In that case, the Court of Appeal similarly concluded that the modification or termination of civil harassment restraining orders is not constrained by the grounds set forth in Code of Civil Procedure section 533.

Yost “determined that the Legislature’s decision not to specify the grounds for modification under section 527.6 meant that trial courts have the flexibility to decide modification requests on a case-by-case basis, consistent with the reasons for granting or renewing restraining orders and the purposes of the statute.”

Although Yost did not involve a DVPA protective order, it explained that “section 533 pertains to ‘the modification or dissolution of an ordinary injunction’ that is ‘obtained under the usual procedures.’” Civil harassment restraining orders, however, are not normal injunctions, but are “‘obtained using simplified, quick procedures.’” Since these “‘truncated, speedy procedures might result in specific terms, or even entire restraining orders, that are not appropriate for some or all of the order’s duration, the Legislature provided the safeguard of the modification or termination request without limiting the grounds upon which a modification or termination could be obtained.’” Since DVPA protective orders are quite similar to civil harassment restraining orders, their modification should not be constrained to Code of Civil Procedure section 533 just like civil harassment orders should not be so constrained.

The Court of Appeal did note, however, that “under appropriate circumstances, the requirements of due process may require a trial court to take evidence at a noticed hearing consistent with section 533 in order to resolve disputed factual matters essential to the court’s reasonable exercise of discretion to modify or terminate a DVTRO.” In this case, however, “Malinowski did not dispute the existence or substance of [the family court’s prior order] allowing visitation, or the fact that the visitation order was in effect at the time” the DVTRO was first issued. Accordingly, “[i]n the absence of a material factual dispute,” the trial court “could reasonably conclude an evidentiary hearing was not required for [it] to exercise [its] discretion to modify the DVTRO to avoid conflicts with existing court-ordered visitation.”

In re Marriage of Willis and Costa-Willis

07/14/23 CA 4/3: G061528

In this case, the Court of Appeal concluded that the Family Code section 3044 presumption does not arise “when neither party is seeking custody or a modification of a custody or visitation order.” Mother was the appellant. She contended that the trial court erred when it purportedly applied the Family Code section 3044 presumption to award sole physical custody to her, even though it still maintained an equal timeshare order. Doing so is ordinarily not permitted because “an arrangement authorizing children to spend roughly equal time with each parent” is a “joint physical custody arrangement.” (Celia S. v. Hugo H (2016) 3 Cal.App.5th, 655, 658.)

In this case, Mother filed a request for a DVRO against Father. She did not request a change of visitation or a change of custody in her pleadings, she did not request to list the child as a protected party, and she did not make a request for a change in custody or visitation when arguing her case. The trial court granted the DVRO and, sua sponte, awarded Mother sole physical custody.

The Court of Appeal concluded that the application of the Family Code section 3044 presumption was error here because the plain language of Family Code section 3044 permits the presumption to apply only where there is “a party seeking custody of a child.” This is consistent with the rest of the statute which repeatedly references parties that seek custody of a child. Further, Family Code section 3044(h) only requires the court to provide the parties with a copy of Family Code section 3044 in cases involving custody mediation. Since custody mediation is not required when no party seeks custody or a change in custody, “by negative implication, section 3044 subdivision (h) means that in a restraining order proceeding in which obtaining or modifying custody or visitation is not being sought, the court need not inform the parties of section 3044 and provide them with a copy.”

Notably, Celia S. and In re Marriage of Fajota stated that presumption applies “in any situation in which a finding of domestic violence has been made.” The Court of Appeal declined to follow these cases because they go beyond what the statutory scheme permits and because, in those cases, at least one parent was seeking custody or a modification of custody.

Finally, even though Father did not appeal, the Court of Appeal reversed the order awarding sole physical and sole legal custody in Mother’s favor. This was because “the issue of joint physical custody and the issue of legal custody are so interwoven and connected that both must be considered together.” The trial court “did not err by keeping the visitation order in place but did err by granting [Mother] sole physical custody. Considering the importance of legal custody and the power that sole legal custody gives to [Mother]…justice require[d] the reversal of the sole legal custody award notwithstanding [Father’s] failure to appeal.”

Braugh v. Dow

07/03/23 CA 2/8: B311859

In this case, the Court of Appeal affirmed a trial court order setting aside a default judgment because of defective service. Specifically, the plaintiff herself (Braugh) served the summons and complaint on the defendant (Dow).

Braugh argued that “Dow’s motion to set aside” was not timely filed and argued that Dow was “estopped, by his conduct, form setting aside the default judgment.”

First, the Court of Appeal noted that the application to set aside was timely because the judgment was void, rather than voidable. There is no time limit on setting aside a void judgment or order.

Second, the Court made clear that effectuating proper service of the summons and complaint establishes personal jurisdiction. To “establish personal jurisdiction, compliance with statutory procedures for service of process is essential.” Where a “default judgment [is] entered against a defendant who was not served with a summons as required by statute, the judgment is void, as the court lacked jurisdiction in a fundamental sense over the party and lacked authority to enter judgment.”

The Court of Appeal rejected the argument that since Dow was personally served, albeit by a party, granting the set aside elevated form over substance since Dow had actual notice of the underlying case. However, since this was a matter of fundamental jurisdiction, the trial court simply lacked the authority to enter judgment unless the statutory requirements were strictly followed.

The Court of Appeal also noted that Code of Civil Procedure section 410.10 “does not empower a court to treat a party’s general appearance in an action as a waiver of a defective service of summons on the party, nor to treat the general appearance as curing the defects in service…Thus, even if Dow had made an appearance in the [underlying] action, that does not empower to the court to treat it as a waiver of a defective service.”

Swan v. Hatchett

06/29/23, CA 1/4: A163825, A164764

In this case, the Court of Appeal reversed the trial court’s order denying Swan’s request to modify child support and granting Hatchett’s request to award attorney fees because, primarily, the Court’s findings were fundamentally inconsistent.

Swan requested that the Court modify an order requiring him to pay $2,350 per month in child support. This was based on $9,245 in monthly earnings. Hatchett’s income was set at zero.

At the modification hearing, Swan’s expert testified that Swan’s income was around $3,500 per month in 2017 and 2018. This was based on tax returns, bank statements, and a general ledger of transactions Swan provided to him. The expert did not perform an audit or independently verify anything beyond matching expenses to bank records and canceled checks. Meanwhile, Hatchett secured a new job, first earning $24, then $36 per hour.

The trial court denied Swan’s modification request on the grounds that the evidence of his income was not credible. The trial court, however, said Swan’s gross income in 2018 was about $2.38 million. The trial court found further that it would be unjust to modify the support based on Hatchett’s income because Hatchett had provided an updated income and expense declaration while Swan had not and because it appeared to the trial court that Swan’s income had increased rather than decreased.  The trial court also ordered Swan to pay Hatchett $10,000 in attorney fees on a need and ability basis.

The Court of Appeal concluded that “substantial evidence [did] not support the trial court’s decision to ignore all of the evidence of [Swan’s] income in this case.”

Although the trial court’s “credibility findings regarding Swan’s evidence would normally be conclusive” in a substantial evidence standard of review, “[t]he problem here is that the trial court’s order and statement of decision are inconsistent and significantly misstate the evidence in key respects relevant to its credibility determination.”

The trial court’s “rejection of all of Swan’s testimony” could not be reconciled with its “statement that Swan had gross income in 2018 of $2.38 million” or that Swan’s income had increased rather than decreased. Notably, the Court of Appeal pointed out that finding “evidence and testimony not credible had the effect of removing that testimony from the evidentiary mix.” Since Swan was the only one who provided evidence on his income, disregarding all of his evidence left no basis from which to conclude that he had a specific amount of income or that his income had increased.

Further, there was no possible basis to conclude that Swan’s gross income was $2.38 million dollars. The only potential source for that figure was a net operating loss carryforward. A net operating loss carryforward, however, is not income. The actual gross income could only have been as high as $370,000 based on the evidence provided.

The Court of Appeal noted that the trial court’s decision to “disregard all of Swan’s testimony” was a decision “apparently without precedent in reported cases.” It was “striking given that the trial court had other options at its disposal to respond to Swan’s credibility problems.” It could have imputed income to Swan, as in Barth. It could have also rejected non-credible deductions, added-back personal expenses as income, or deem whatever his expenses were as equal to his income. Even if the trial court had to use estimates, “Swan would have had little grounds to complain” because it was his lack of credibility that caused these problems.

Finally, the Court of Appeal noted that the trial court was not permitted to simply ignore Hatchett’s income, as that would be contrary to the policy that both parents contribute to the support of the child, as set forth in Family Code section 4053.

For the same reasons, the Court also reversed the attorney fee award.

Finally, the Court rejected Swan’s arguments that the trial court should have ruled on his request to waive arrears, as it is well settled that the trial court lacked authority to waive arrears.

DEPENDENCY (current through 7/20/2023)

By:  John Nieman

In re Damari Y.

6/16/23, CA 1/2 A166037

Father appealed a denial of an evidentiary hearing on his Welfare and Institutions Code (W&I) §388 petition. Father was incarcerated the entire case, all of which transpired during the pandemic. Father had 5 different attorneys during the course of the case. On the date the W&I §366.26 hearing was set, his counsel, although appointed only very recently and never having communicated with father, submitted nonetheless. On the morning of the continued subsequent W&I §366.26 hearing, father filed a W&I §388 petition which, after a continuance for all parties to respond, was rejected as not presenting a prime-facie case.

Normally, errors leading up to and including the setting of a W&I §366.26 hearing require an extraordinary writ for remediation. Pursuant to this end, parents not present must be mailed the form required to preserve the ability to appeal by writ, a so-called “Notice of Intent to File a Writ Petition…”, JV-820. Aside from other possible deficits in the due process afforded father in this case, no such form was mailed to him (according to the record). In any case, a W&I §388 petition may be utilized to challenge almost any previous order.

This court interpreted W&I §388 citing (In re Marilyn H. (1993) 5 Cal.4th 295) that a mere prima facie showing is required and that such petitions be liberally construed in favor of sufficiency, and In re Justice P. (2004) 123 Cal.App.4th 181 that it may consider the entire factual and procedural history of the case to reverse and remand for a hearing on the merits of the father’s W&I §388 petition.

In re H.B.

6/20/23, CA 2/8: B322472

This is an Indian Child Welfare Act (ICWA) case. Father appealed the termination of parental rights orders, alleging there was an inadequate initial inquiry by the Department of Children and Family Services (DCFS) into the possible applicability of the ICWA. Primary discussion was about whether paternal step-grandmother and maternal stepsister were required to be questioned under W&I 224.2(b) as “others who have an interest in the child.” The appellate court found that inquiring of such persons was not required by the statute, characterizing such an interpretation as absurd, that it made the scope of such an inquiry limitless. The appellate court acknowledged that the initial inquiry was at some point deficient, upon which the trial court ordered an expansion of the inquiry, which was subsequently effectuated, albeit not ultimately to father’s satisfaction. The appellate court also argued that there was a diminishing return in terms of the probability of obtaining useful information about possible Native American heritage from extended family members and “others” (being further removed from the sources of information about the family’s heritage), and that therefore the trail court was able at some point to end the inquiry (at least impliedly by making findings of the inapplicability of the ICWA). Finding no error, the appellate court affirmed.

In re D.P.

6/28/23, CA 4/1: D081396

The minor and adoptive parents of the minor’s half-siblings appealed denial of a W&I §388 petition that requested placement of the minor with her half-siblings’ adoptive parents (with whom the adoptive siblings still resided). The appeal claimed that the placement preference afforded relatives under by W&I §361.3 should have been applied by the trial court. In addition to having failed to raise the issue at the trial court, the trial court found that the ½ siblings’ adoptive parents weren’t relatives as defined by the statute. In any event the trial court found that it was not in the minors’ best interests (as required in order to grant a W&I 388 petition) to be removed from the only home she knew to the ½ siblings’ adoptive home in Michigan. Since substantial evidence supported the trial court’s best interests finding (that it was not in the D.P.’s best interests to be placed with the ½ siblings’ adoptive parents -and the trial court articulated the factual basis for its best interests finding), and since the appellate court did not disagree with the trial court’s legal analysis of the application of relative placement preference (even were the issue raised in the trial court), its decision was affirmed.

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