Family Law

Recent Family Law Cases

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FAMILY LAW (current through 11/19/2023)

By:  Andrew Botros, CFLS

The precise holdings in a given case are bolded.

In re Marriage of V.S. and V.K.

11/15/23 CA 2/1: H050105

https://www.courts.ca.gov/opinions/documents/H050105.PDF

In this partially published opinion, the Court of Appeal affirmed the trial court’s determination regarding the non-binding nature of the 2010 Hindu marriage ceremony between V.K. and V.S. under India’s Hindu Marriage Act of 1955. Consequently, as this marriage was not “valid by the laws of the jurisdiction in which the marriage was contracted,” it also lacked validity in California under Family Code section 308. The Hindu Marriage Act’s inability to legally bind V.K. because he was a non-domiciliary of India and a permanent resident of the United States was dispositive here.

The Court of Appeal acknowledged its limited scope in interpreting the Hindu Marriage Act, relying solely on the case law provided by the parties and their experts and without additional perspectives or expertise in Indian jurisprudence. Despite these constraints, the Court maintained that ‘to be successful on appeal, an appellant must affirmatively demonstrate error on the record before the court,’ a burden V.S. failed to meet.

Further, the Court of Appeal rejected V.S.’s claim regarding V.K.’s supposed judicial admission about their 2010 marriage date in his response to the dissolution petition. The Court of Appeal emphasized that judicial admissions, fundamentally distinct from evidence, constitute a waiver of proof by acknowledging the truth of a fact. Judicial admissions apply exclusively to facts, not to legal conclusions or mixed questions of law and fact. In this instance, the legal validity of the 2010 marriage ceremony under both the Hindu Marriage Act and Family Code section 308 represented, at best, mixed questions of law and fact, thus falling outside the realm of judicial admission.

Author’s Note: Just because an admission is of a legal nature does not necessarily mean one cannot be bound by that admission. The bar is, however, higher. Under the doctrine of judicial estoppel, one can be precluded from taking contradictory legal positions if the necessary elements are met: “(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.)

Jimenez v. Chavez

11/13/23 CA 4/2: E078234

https://www.courts.ca.gov/opinions/documents/E078234.PDF

In this case, the Court of Appeal determined that the six-month deadline to file a motion under Code of Civil Procedure section 473(b), under both the discretionary provision and the mandatory attorney-fault provision, is “either 182 days or six calendar months, whichever period is longer.”

This is consistent with “long-settled principles governing judicial interpretations of statutory limitations periods” that require liberal construction where a statute “establishing a time limitation is susceptible of several possible interpretations.” Any such “computation of time should be so made as to protect a right and prevent a forfeiture if this can be done without violating a clear intention or a positive statutory provision.”

Although the motion for relief under Code of Civil Procedure section 473(b) was timely, the underlying motion was still properly denied because it was unaccompanied by a proposed responsive pleading. The trial court is only required to grant a motion for relief if it is in the proper form. This means that any such motion, whether under the discretionary or mandatory provisions of section 473(b), must be “accompanied by a copy of the answer or other pleading proposed to be filed…”

In re Mariage of Molitska and Ford

11/8/23 CA 1/4: A166543

https://www.courts.ca.gov/opinions/documents/A166543.PDF

In this case, Husband Motiska challenged the trial court’s decision regarding the sale of his sole proprietorship, Neon Palm, to Buxup Corp., a community property corporation. He argued that this transaction constituted a contribution to the acquisition of a community asset under section 2640 and that he was entitled to reimbursement. The Court of Appeal disagreed for a number of reasons.

The central issue in this appeal was whether the sale of Neon Palm to Buxup for $1 was a contribution that triggered the right to reimbursement under section 2640. The Court of Appeal first addressed Motiska’s failure to avoid the application of the doctrine of implied findings against him by not making an appropriate objection to the trial court’s statement of decision. The Court characterized the transaction between Neon Palm and Buxup as a sale. If Motiska believed that the transaction should have been characterized as a donation, rather than an acquisition, he needed to make that objection. He failed to do so.

Accordingly, the Court of Appeal agreed with Wife Ford that the trial court’s implied finding that the $1 sale price fairly reflected its value was supported by the evidence. The Court of Appeal noted that the sale, even at a low price, constituted valid consideration. This view was further supported by the fact that Motiska chose the sale price to avoid business transfer taxes, among other potential reasons.

In what the Court of Appeal treats as its holding, but may actually be dicta, the Court of Appeal concluded that “[e]ven if it were necessary to go beyond the unchallenged factual finding” that Neon Palm was sold rather than donated, they would sustain the trial court’s finding as a matter of law. Upon de novo review, the Court of Appeal concluded that the sale of Neon Palm at $1 did not qualify as a contribution to the acquisition of community property under section 2640 precisely because it involved a sale (an exchange for consideration) rather than a contribution (a voluntary transfer to benefit the community).

In support of its reasoning, the Court of Appeal referred to the California’s Supreme Court’s opinion in In re Marriage of Walrath. The Court of Appeal highlighted the policy consideration of encouraging contributions to benefit the community and protecting the expectations of reimbursement that arise from those contributions. It was determined that a sale of property to the community does not align with the principle of making a contribution “freely and without reservation” as explained in Walrath.

Ultimately, Motiska’s insistence on treating the sale of Neon Palm differently due to a nominal sale price was not persuasive to the Court. The Court of Appeal held that the transaction should be viewed as a sale rather than a contribution, and the sale price set by the parties should be respected as valid consideration, in line with established contract law principles. The Court of Appeal was not persuaded that, “in the absence of undue influence or other circumstantial evidence that a selected price should be treated as a sham, the value the parties placed on property in a sale should be subject to ad hoc reexamination.”

Although the Court of Appeal acknowledged that in the “heightened importance of objectively accurate asset values in such contexts as accounting and tax, it makes sense the courts are sometimes willing to second-guess subjectively reported values,” those circumstances were not present here.

Zachary H. v. Teri A

Filed 10/06/23, Certified for Partial Publication on 10/31/2023 CA 4/1: D081250

https://www.courts.ca.gov/opinions/documents/D081250.PDF

The firearms prohibition employed by the trial court was constitutional

In this partially published case, the Court of Appeal discussed the alleged infringement on Teri A.’s Second Amendment rights as part of the issuance of a DVRO. The court distinguished this case from the recent United States Supreme Court opinion, N.Y. State Rifle & Pistol Ass’n v. Bruen (2022) 597 U.S. ___ [142 S.Ct. 2111] (Bruen). Bruen held that the Second Amendment confers an individual right to possess and carry weapons in case of confrontation, and central to this right is the right of a law-abiding, responsible citizen to possess firearms  Teri A., however, was not a law-abiding citizen by engaging in the conduct underlying the DVRO’s issuance.

Teri A.’s argued a complete ban on public carry would be more narrowly tailored and less burdensome than a total ban. First, the Court of Appeal addressed whether this argument was properly preserved on appeal. It made a distinction between an “as-applied” constitutional challenge and a facial constitutional challenge. The Court of Appeal explained that a facial challenge asserts that a statute is unconstitutional in all of its applications—that it conflicts with the Constitution in every case, contrasting this with an “as applied” challenge that asserts a constitutional defense that may be correctable only by examining factual findings in the record or remanding to the trial court for further findings. This distinction is crucial because, as the court notes, a facial challenge does not depend on the record and can be reviewed “de novo,” even if not raised below, because the respondent did not have an opportunity to introduce facts to rebut a particular argument. Accordingly, in this case, the Court of Appeal rejected the “as-applied” challenge as forfeited as it was not raised in the trial court, but did reach the merits on the facial constitutional challenge of section 6389.

In upholding Section 6389, the Court of Appeal concluded that the firearm prohibition was  analogous to a prohibition on felon weapon possession, which is a constitutionally valid restriction on an individual’s right to possess a firearm.

For the equal protection claim, the Court of Appeal asserted that the first step in an equal protection analysis is to identify the state’s classification of groups. If a classification burdens a fundamental right, then it must be closely scrutinized. However, the court finds Teri A.’s claim wanting, concluding that appellant’s argument fails on the first step of the analysis. Even if there was a classification that distinguished between different groups if the discrimination does not involve an underlying fundamental right, the rational basis test applies. The private right to bear arms, however, is not a ‘fundamental’ right under the Second Amendment to the United States Constitution. For a classification to be upheld, any reasonable set of facts that could provide a rational basis for the classification is sufficient.

The exception within section 6389 allowing certain individuals to retain their firearms if it’s essential for their jobs and if they cannot be reassigned to a position that doesn’t require a firearm is narrowly tailored: it only permits firearm possession during work hours and commute, providing a balance between protecting victims of domestic violence from gun violence and the economic interests of those restricted by the law. This narrow crafting is seen as justified by the legislature’s compelling interest in reducing domestic violence. The exception, therefore, was not unconstitutional as it rationally aligned with the legislative goal of preventing individuals who have committed domestic violence from having easy access to firearms.

Author’s Note:   On November 7, 2023, the United States Supreme Court heard oral argument in United States v. Rahimi. They addressed whether the prohibition of firearms by persons subject to domestic violence restraining orders violates the Second Amendment on its face. That ruling might have a major effect on opinions such as this.

Snoeck v. Exaktime Innovations, Inc.

Filed 10/2/23, Certified for Publication on 10/25/2023 CA 2/3: B321566

https://www.courts.ca.gov/opinions/documents/B321566.PDF

This case concerned to what extent, if any, a trial court can consider incivility in determining the reasonability of attorney fees where the incivility did not directly affect the incurred attorney fees and costs.

Examples of incivility

The Court of Appeal addressed several instances of incivility demonstrated by attorney Smith towards opposing counsel and the trial court. Smith is criticized for using disparaging language against the opposing counsel by accusing them of dishonest and unethical behavior, using terms such as “lies,” “fraud,” “brazen con,” “misrepresentations,” “sleazy,” “cringeworthy,” and “duping” the court. Such language was deemed unnecessary and beyond the bounds of zealous representation of a client.

Additionally, Smith’s behavior towards the trial court was similarly inappropriate. The trial court described his tone as “belittling and antagonistic” and nearly “contemptuous.” Smith’s communications included claims that the defense counsel made a “total fool of” the court, implying the court was an “easy mark” and accusing the trial judge of “provocative misconduct,” indicative of an apparent disdain for the trial court.

No proof tying incivility towards an increase in fees and costs is required

The Court of Appeal concluded that since civility “is an aspect of skill” and because reasonableness requires the trial court to evaluate an attorney’s skill, the trial court “was not required to find Smith’s comments directly caused an increase in ExakTime’s or Snoeck’s fees before applying a downward adjustment to” the attorney fees awarded. 

Author’s Note:  Tying civility to reasonability directly should, and rightly so, make requesting/opposing fee awards easier for those who are civil and more difficult for those who are not.

DEPENDENCY (current through 11/19/2023)

By:  John Nieman

The precise holdings in a given case are bolded.

In re Kayla. W.

11/14/23, CA 2/3 B326119

https://www.courts.ca.gov/opinions/documents/B326119.PDF

This case involves application of the UCCJEA, the Uniform Child Custody Jurisdiction and Enforcement Act (Act). The Act is the legal framework to determine the proper forum (State) to resolve child custody disputes. The Act applies to Juvenile Dependency cases which, almost by definition, involve child custody disputes. This case involves California and Nevada, both signatories to the Act.

Mother lost custody by leaving her 1 year-old daughter in a motel room alone. Mother failed in efforts to reunify with her daughter, and raises the UCCJEA issue for the first time on appeal from termination of her parental rights. The Act requires courts to confer at the outset of a case -when presumably questions of the proper forum arise- with their counterparts in the other state(s) in order to determine which state will decide the issues of child custody. This case was unremarkable since the California judicial officer fulfilled their duty to confer and subsequently was permitted by Nevada to handle the case. That process involved the Nevada court offering to relinquish jurisdiction to California if the child were placed with the maternal grandfather who lived in California. That having been accomplished and the Act duly followed, California proceeded to adjudicate the case through and including the termination of mother’s and father’s parental rights.

The wrinkle arose because the daughter was subsequently placed with a different caregiver (i.e. no longer with maternal grandfather, prior to the termination of reunification services). Notably when that happened, mother did not object or raise the question of forum. Mother’s primary contentions on appeal were: 1) that she was allowed to initially raise the question of a UCCJEA violation on appeal; and 2) that Nevada’s relinquishment of jurisdiction was (continuously) conditional upon the child remaining placed with the maternal grandfather.

The appellate court rejected both arguments: 1) Mother forfeited the question by not raising the issue in the trial court (nor by extraordinary writ). It distinguished In re L.C. (2023) 90 Cal.App.5th 728 because in that case the clear existence of a relationship with Texas was basically ignored by the California trial court, where here the Act was properly followed. 2) The legal contention that Nevada should have jurisdiction or be consulted about the question after placement out of maternal grandfather’s home was determined to have no merit. There was no factual basis in this case to allow Nevada to have exercised jurisdiction after the child was placed out of the maternal grandfather’s home, and neither does the UCCJEA provide a legal way for a state court to make conditional orders (even were there no provision for changes in forum subsequent to the resolution of initial jurisdiction).


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