Recent Family Law Cases (current through 2/24/2020)
[Opinions available at: http://www.courts.ca.gov/opinions-slip.htm]
By: Stephen D. Hamilton, CFLS
Marriage of Deluca
2/13/20, CA 4/1: D071379
TCT made an award of permanent spousal support that did not deduct principal payments made by H for properties that generated rental income for H. As a result, the support order exceeded the amount of net income available to H. Reversed. Addressing an issue of first impression in California, the CtA adopted the holding from a Wyoming decision. “Although such principal payments may increase an obligor spouse’s net worth, a trial court retains the discretion to deduct a payment from income available for support if it finds, based on substantial evidence, that the payment reasonably and legitimately reduces the spouse’s net income available for support, considering the totality of the relevant circumstances, including the extent to which the payment constitutes an ordinary and necessary business expense and whether disallowing the deduction would work a substantial hardship on the payor spouse. The trial court also has discretion to disallow the deduction of principal payments on business debt from a party’s income available for support under appropriate circumstances, such as where the court reasonably finds the principal payments are excessive, the property encumbered by the loan in question was acquired for the purpose of lowering income available for support, or the payments are unnecessary for the operation of the business at a reasonable level.”
Marriage of Brewster & Clevenger
2/19/20, CA6: H045050
“…[T]o overcome the section 4325 presumption against awarding spousal support to a spouse convicted of domestic violence based on ‘documented evidence of a convicted spouse’s history as a victim of domestic violence,’ the convicted spouse must present written evidence in the form of a “writing” within the meaning of Evidence Code section 250 proving by a preponderance his or her history as a victim of domestic violence in the relationship.” W’s testimony at trial of alleged prior acts of H’s domestic abuse were therefore insufficient to overcome the presumption raised by FC 4325 due to W’s prior conviction for committing domestic abuse against H.
In Re A.J.
1/23/20, CA 2/5: B297762
F appeals termination of his parental rights pursuant to WIC 366.26. F asserted he had inadequate notice of the jurisdiction and disposition hearing, leading to his inability to appear at the hearing. F also claimed he was improperly denied counsel and reunification services. Reversed and remanded. F demonstrated “a miscarriage of justice through the denial of his right to appear and have counsel….” F received untimely notice of the jurisdiction and disposition hearing, his request to be transferred from a correctional facility in Mississippi (where he was transferred by the California Department of Corrections due to prison overcrowding) was not honored and the TCT did not continue or appoint counsel for father. Under WIC 300, a petitioner cannot be adjudicated without the presence of the incarcerated parent or their attorney, absent a “knowing waiver of the right” to be physically present. Thus, the error in this case was not harmless, as “the defective notice caused father to lose not just his right to appear but his right to legal representation during critical stages of the dependency case.”
In Re D.P.
2/26/20, CA 2/3: B295780
At combined jurisdiction/disposition hearing, D.P. removed from M’s physical custody and placed with F, even though F had restraining order against M requiring her to stay away from F’s home. M appeals. Reversed. TCT failed to state facts supporting removal as required under WIC 361(e). TCT also failed to consider reasonable alternatives to removal as required under WIC 361(c). TCT’s use of “Dependency Court Order 415” does not satisfy mandatory duty under WIC 361(e) to state the facts upon which the decision for removal is based.
In Re J.M.
1/24/20, CA 6: H046917
In a dependency action, TCT’s permanent plan for J.M. (who had extraordinary physical needs due to a brain injury suffered as an infant) was to appoint grandmother as legal guardian and continue dependency action. J.M. appealed, asserting guardianship appointment was not authorized. Affirmed. Under WIC 366.26 (c)(4)(A), if the court finds that adoption or termination of parental rights is not in the best interests of the child because the child is residing in a treatment facility, the court is required to order “the present caretaker or other appropriate person” appointed as the child’s legal guardian. “Application of subparagraph (c)(4)(A) does not plainly and unambiguously hinge on a finding under paragraph (c)(1) that a child is adoptable.”
Attorney’s Fees, Costs & Sanctions
Menezes & McDaniel
1/15/20, CA 4/1: D074434
W ordered to pay H $200,000 in sanctions under FC 271 after “protracted postjudgment litigation over the transfer of title of real property…” concerning real property in Brazil. The sanctions award included prospective fees and costs that would be incurred by F in completing process of reclaiming title to property that W had transferred through her mother to a Brazilian attorney, in violation of TCT orders that she not dispose of or encumber the property. “There is nothing in [FC 271] that requires the attorney fees and costs to have been incurred or charged at the time of the award.” Requiring attorney fees and costs to “have already been incurred at the time of the award would limit a court’s ability to base the award on the extent to which the party is frustrating the policy and may ignore liability the offending party’s conduct creates.” Remanded for TCT to ensure actual sanction amount was “tethered” to attorney fees and costs, as TCT’s order improperly included reimbursement of H’s travel costs and use of vacation time to go to Brazil, and did not provide detail allowing CtA to track the award to legal fees and costs.
Hance v. Super Store Industries
1/23/20, CA 5: F075852
In dispute between attorneys regarding division of fees from a class action lawsuit, TCT awarded 30% of fees to attorney whose retainer agreement did not advise clients (class representatives) that he lacked professional liability insurance, in violation of former Rule of Professional Conduct rule 3-410.5 [now Rule 1.4.2]. Reversed. Although rule does not identify consequences for noncompliance, CtA cited other cases wherein non-compliance with RPC in formation of contract can render the contract unenforceable. “Consequently, … the fee division agreement must be deemed unenforceable as in violation of public policy, to the extent it provides for a percentage recovery by [the attorney violating the provision].” Remanded to determine if offending attorney was entitled to quantum meruit fees.
George v. Shams-Shirazi
2/11/20, CA 1/1: A155158
H appeals sanctions award under FC 271. H claimed motion for sanctions was untimely under Rule of Court 3.1702, which requires a request for statutory fees in a civil action to be filed within the time for filing of a notice of appeal. Affirmed. Rule 3.1702 does not apply to requests for attorney fees for post-judgment proceedings. The Court’s discretion to award FC 271 sanctions “is not boundless, and post-judgment requests for attorney fees can be denied under the equitable principle of laches if the delay in filing unfairly prejudices the other party.” As appellant could not establish prejudice, TCT did not abuse its discretion in awarding sanctions.
O.C. v. Superior Court
1/8/20, CA 4/3: G058416
O.C. requested special immigrant juvenile (SIJ) findings. Although TCT used mandatory judicial council form, court failed to detail its findings, citing California law, as required for Items 4(b) and 6 on the form. Notice of appeal filed, treated as writ by CtA. Writ of mandate issued directing new order be issued. By failing to include items 4(b) and 6, the TCT’s order was insufficient to obtain SIJ status under federal and state law. Without those findings, an immigrant child will be unable to petition the USCIS for SIJ status.
Kinsella v. Kinsella
2/19/20, CA 4/1: D074989
TCT dismissed H’s malicious prosecution claim against W pursuant to SLAPP (CCP 425.16). H filed malicious prosecution action against W after she voluntarily dismissed a Marvin action claiming H promised to equally share all property and income during their relationship. Relying on adverse interim judgment rule, TCT dismissed malicious prosecution as denial of H’s motion for summary judgment in the Marvin action established probable cause for that action. Reversed. Because H presented evidence in TCT sufficient to invoke the fraud exception to the adverse interim judgment rule, TCT should have denied SLAPP motion. H only needed to present evidence of a prima facie case of the elements of a malicious prosecution action, which he did.
Marriage of Grimes & Mou
2/19/20, CA6: H046035
W appeals pre-trial order regarding characterization of monies received from W’s family. Based on the one final judgment rule, the appeal was untimely. The collateral order doctrine did not apply, as TCT ruling was not collateral to or truly distinct and severable from the general subject of the litigation. However, as the final Judgment had been entered since the TCT’s pre-trial ruling, CtA exercised its discretionary authority to treat the untimely notice of appeal as having been filed after entry of Judgment based on lack of prejudice to respondent and the policy of resolving appeals on their merits.
Marriage of Deal
2/24/19, CA 1/3: A154425
TCT affirms order declaring H a vexatious litigant. H appealed, claiming order was “void, unenforceable and unsupported by substantial evidence.” Motion denied and affirmed. Although a prior order declaring H a vexatious litigant was issued by a subsequently disqualified commissioner, the trial court had issued a more current order that was supported by substantial evidence. Further, as a matter of law, a non-plaintiff litigant can be designated a vexatious litigant.