Recent Family Law Cases (current through 4/24/20)
[Opinions available at: http://www.courts.ca.gov/opinions-slip.htm]
By: Stephen D. Hamilton, CFLS
In Re Aubrey T.
4/24/20, CA 2/7: B296810
Bio-F’s parental rights are terminated, and child declared for adoption by maternal GPs. F appeals, alleging insufficient evidence to support abandonment under FC 7822 and that the TCT acted in excess of jurisdiction by adjudicating matter under FC 7822 when petition was filed under a different statutory provision. The termination request was made by M in juvenile court pursuant to FC 7662. At the time of filing, M & F had a pending dissolution action and maternal GPs had filed a separate guardianship action. Following a 7-day hearing, the TCT terminated F’s parental rights. Reversed. Evidence from maternal GP that F had previously failed to provide financial support and did not have contact with child for a 1-year period of time only established a presumption of intent to abandon under FC 7882. The CtA found F had rebutted that presumption by presenting evidence he did not intend to abandon child during that 1-year period of time (including photos of him visiting the child during the year). “By producing such evidence, [F] rebutted section 7822’s presumption, which in turn required the juvenile court to find that he had an intent to abandon without regard to the presumption and without reallocating the burden of proof.” Once the presumption no longer applies, “the failure to support or communicate with a child… standing alone, is insufficient to prove intent.” There must be additional evidence from which the court can infer a party acted with the requisite intent to abandon. Based on the lack of such additional evidence in this case, the TCT erred in terminating F’s parental rights.
Marriage of Mohler
4/13/20, CA 4/2: E071314
H owned property before marriage, but community acquired interest in property under Moore/Marsden. Following separation, H continued to live in home for six years. W then sought division of post-separation Watts charges between H’s separate property interest and CP Moore-Marsden interest. The TCT denied W’s claim for division of the Watts charge. Reversed. The community may be compensated for the loss of rental income due to one party’s occupancy of separate property in which the community has acquired a Moore/Marsden interest. That compensation should occur through Watts charges, not an enhanced Moore/Marsden interest.
Safarian v. Govgassian
4/21/20, CA 2/5: B291387
H & W file action for fraud against multiple defendants. H then filed for divorce. H and W agreed to a marital property agreement characterizing any recovery in the fraud action as each party’s SP. After judgment obtained against fraud defendants, H files for bankruptcy. Bankruptcy court settles with fraud defendants. Fraud defendants then seek stay of any collection proceedings by W since the “entire amount of the judgment was community property included in husband’s bankruptcy estate and settled by the bankruptcy trustee.” W contended her portion of the fraud judgment was her separate property and not part of H’s bankruptcy. Fraud defendants claimed the marital property agreement was not binding as it did not satisfy FC 852 transmutation requirements. The TCT agreed with fraud defendants and stayed W’s collection attempts. Reversed and remanded. “[A] transmutation that does not meet the requirements of section 852 is voidable, rather than void.” Since the fraud defendants were not parties to the marital property agreement, they could not rely on FC 852 to invalidate the agreement.”
J.M. v. W.T.
3/25/20, CA 2/5: B296295
PET’s DVRO request was denied after hearing after the TCT denied PET’s request for a continuance of the hearing. The continuance was requested as service had not been effectuated and because PET learned 14 days before the hearing that he had been scheduled for “necessary spinal surgery” the day before the hearing. The recovery from the surgery would prohibit him physically from participating in a hearing the following day. Neither party appeared at the hearing and the TCT dismissed the petition, stating “[t] he most recent incident happened ten months ago, so it is dismissed with prejudice.” Reversed. The CtA noted that pursuant to FC 6301(c), “[t]he length of time since the most recent act of abuse is not, by itself, determinative. The court shall consider the totality of the circumstances in determining whether to grant or deny a petition for relief.” Further, PET was not required to serve the opposing party with either the initial request or the request for the continuance prior to the original hearing date. Based on the inability to serve the RESP and PET’s medical issues, the TCT abused its discretion in denying the requested continuance.
Curcio v. Pels
3/27/20, CA 2/3: B295293
PET sought a DVRO against her former girlfriend. Both parties were “comedic performers.” PET alleged RESP “reached out to people at the theater” where PET performed and allegedly made false allegations of abuse and assault by PET. RESP also allegedly made statements on her social media accounts “vaguely accusing [PET] of abuse [and] urging people not to book [PET] on comedy shows.” PET made other allegations about RESP. PET asserted the alleged conduct by RESP disturbed her peace and warranted issuance of a DVRO. At the hearing on the DVRO request, the TCT stated PET’s statements in her application which resulted in a TRO being issued “created a presumption that some type of abuse [had] occurred” and that RESP therefore had “the burden of proving by a preponderance of the evidence that these allegations are not true.” The TCT found RESP did not meet that burden and granted the permanent RO. RESP then retained counsel and filed a motion for reconsideration based on the claim she had never been served with a blank response or information form. The motion for reconsideration also addressed the TCT shifting the burden of proof to RESP and introduced new circumstances, specifically that RESP had been banned from a comedy venue where she worked. The TCT then denied the motion for reconsideration. Reversed. The CtA held the TCT’s finding that RESP disturbed PET’s peace was not supported by substantial evidence. After analyzing Nadkarni, Burquet, and Evilsizor, the CtA stated RESP’s “single, private Facebook post accusing [PET] of abusing her is a far cry from the conduct described above.” The CtA also noted no evidence had been presented that RESP sent PET harassing, threatening, or unwanted communications. “We do not interpret Nadkarni and its progeny to hold a restraining order may issue based on any act that upsets the petitioning party. The DVPA was not enacted to address all disputes between former couples, or to create an alternative forum for resolution of every dispute between such individuals.” The CtA also held the TCT improperly shifted the burden of proof to RESP based on the remaining allegations: “…the law imposes no such burden on a party opposing a restraining order.” The decision also noted the TCT abused its discretion in adding an extra year to the restraining order after the TCT announced its initial ruling and following a dialogue between the RESP and the Court that is worth reading.
Marriage of Everard
3/30/20, CA 4/1: D075110
H & W granted reciprocal DVROs following long cause hearing after the TCT found both parties acted as primary aggressors and neither acted in self-defense on multiple occasions where DV committed by each party. H appealed on grounds that the TCT improperly admitted a 2013 police report offered by W that had not been authenticated. Affirmed, based on finding substantial evidence independent of the report supported the TCT’s findings. CtA addressed H’s contention that the TCT did not make the required “findings of fact” necessary to establish H had acted as the “primary aggressor” as required under FC 6305(a)(2). The CtA disagreed with H’s contention. “We have found very little if any caselaw defining what findings a trial court must make to satisfy the ‘detailed findings of fact’ requirement in subdivision (a)(2) of section 6305. At a minimum, to satisfy this requirement and provide for the issuance of mutual protective orders under this statute there must be evidence and a finding of abuse by both parties.” The record contained evidence to support a finding that H acted as the primary aggressor in two separate incidents. Based on the public policy underlying the DVPA and the evidence “showing both parties engaged in repeated acts of domestic violence against the other,” the CtA “decline [H’s] invitation to reverse the DVRO against him merely because he claims the court’s findings were not detailed enough, when (1) there is more than a sufficient record of evidence to support the findings on which the court’s order was based; and (2) the record shows the court conducted a ‘careful evaluation’ of the evidence before finding mutual restraining orders were warranted in this case.”
Jennifer K. v. Shane K.
4/7/20, CA 1/2: A155111
After a ten-year dating relationship, M filed DVRO request. M’s request included a statement that their child in common was a product of rape, and that she had been subjected to verbal and physical abuse throughout the relationship. DVRO request denied by the TCT after testimony of parties and 18 other witnesses. Affirmed. In denying the DVRO, the TCT articulated why it found F’s version of events more credible than M’s. CtA would not disturb those factual findings. Further, although F admitted to punching a refrigerator during an incident 6 years before the parties’ separation (and DVRO application), that admission did not mandate issuance of a DVRO. M also had to prove the incident was “an intentional or reckless act that causes or attempts to cause bodily injury” or “an act that places a person in reasonable apprehension of imminent serious bodily injury,” citing Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334. CtA would not disturb the TCT’s explicit finding that F “punched the refrigerator door in “frustration,” not recklessly,” or the TCT’s implicit finding the act did not put M in reasonable apprehension of serious bodily harm.
In Re D.S.
3/24/20, CA 4/1: D076517
M appeals orders entered after jurisdiction and disposition hearings, alleging noncompliance with ICWA. Affirmed. The CtA found that statements by an Aunt regarding possible tribal affiliation triggered a duty to inquire further. The issue was whether the social services agency’s further inquiry was sufficient. The CtA concluded the agency’s further inquiry was sufficient, even if it did not follow up with an individual whom they believed could not provide any further information of value.
In Re C.P.
3/26/20, CA 4/2: E072671
Grandparents appeal as unconstitutional the “absolute statutory bar to placement” of their grandchild with them due to grandfather’s disqualifying misdemeanor conviction from 1991. The CtA agreed in part. “We agree with grandparents that the absolute statutory bar to placement of the child in their custody would be unconstitutional as to them if they can establish that they have a parental relationship with the child, not just a grandparental relationship. We remand to the trial court to make the predicate factual findings and consider the issue anew from that perspective.” Citing In re Levi U., the CtA noted agencies are “not required to ‘cast about’ for information or pursue unproductive investigative leads.”
In Re A.M.
4/2/20, CA 4/2: E073805
M appeals order terminating parental rights to her 2 children. M appealed, asserting the TCT failed to comply with ICWA and on grounds CA did not have subject matter jurisdiction. Both Fs denied Indian ancestry and mother stated she was “unsure if she [was] of American Indian descent.” M alleged social services agency failed to comply with ICWA as notices omitted maternal great-grandfather’s name and was not sent to two tribes which mother believed were a part of her Indian heritage. However, the fact the children might have some Indian heritage did not rise to the level of information such that the social services agency knew or had reason to know children were Indian children. The CtA therefore affirmed the TCT’s ICWA orders as “Mother has not demonstrated there was a viable lead that would require DPSS “to make a meaningful effort to locate and interview extended family members to obtain whatever information they may have as to the child’s possible Indian status.’” [Citation to In Re K.R. (2018) 20 Cal.App.5th 701, 709.] M’s UCCJEA claim also failed as the TCT had jurisdiction to make the initial custody determination under FC 3421. Evidence demonstrated M had custody of the children for at least 6 months in CA before the dependency action commenced. The children also had significant connections with CA due to presence of family members, time spent living in CA and one child’s birth in CA. Alternatively, CA had temporary emergency jurisdiction under FC 3424. Based on the absence of records from alleged actions in other states, the TCT “was entitled to discredit the parents’ vague references to family law proceedings…” in other states.
In Re Austin J.
4/15/20, CA 2/1: B299564
M appeals jurisdictional and dispositional orders of the TCT asserting the court lacked subject matter jurisdiction under the UCCJEA and a failure to comply with ICWA. Affirmed. Although North Carolina had issued prior dependency orders pertaining to the children, M had resided in CA for at least six months prior to the dependency filing. As a result, CA was the home state for purposes of the UCCJEA and had jurisdiction to make custody orders. FC 3423 does not “preclude a California court from exercising jurisdiction over a child merely because a different state court has previously made orders regarding the same child.” As to the ICWA argument, the TCT had met its duties under ICWA as to mother and the father of 4 of the children; the duty had not been met as to the father of the other 3 children. As to those 3 children, the ICWA issue was moot as the 3 children had been returned to M and their F. As to M’s claim ICWA was violated as to her possible Indian ancestry, the CtA distinguished other cases and found that even if the possibility of Indian ancestry suggests possible tribal membership, that bare suggestion is insufficient by itself to establish a reason to believe a child is an Indian child” and therefore ICWA did not impose a duty to make further inquiry.
In Re J.A.
4/20/20, CA 2/5: B297416
M appeals jurisdiction and disposition orders declaring children dependent, placing children in her home but requiring her to participate in programs and services. “The sole basis of dependency was mother’s use of medical marijuana while pregnant with Baby.” Reversed. “We conclude the evidence is insufficient to establish mother abused marijuana or that any such substance abuse placed the children at risk of serious harm.” Opinion notes that differing opinions have been issued by two other divisions of the Second Appellate District as to when substance use reaches the point of substance abuse warranting dependency intervention. Opinion also notes the social services agency did not argue “there is sufficient evidence of abuse under any particular standard.” This failure is understandable the “evidence of mother’s substance use is, at most, that she used edible marijuana while pregnant, to address her pregnancy symptoms, after having researched that it was a relatively safe alternative…. This is not substantial evidence – or any evidence – of substance abuse.” Even if the CtA concluded the evidence re M’s use of marijuana rose to the level of substance abuse, there was insufficient evidence re substantial risk of harm to children.
In Re S.R.
4/23/20, CA 2/1: B300214
Dependency action commenced after child pornography found in F’s possession, including images of young females around child’s age. After dependency action started, F convicted of felony due to possession of child pornography. At dispositional hearing, the TCT removed child from F’s custody subject to monitored visits. F appealed disposition ruling, arguing “mere possession of child pornography does not demonstrate that he poses a substantial risk of harm to his daughter.” The CtA disagreed with father’s argument and affirmed. F’s pornography collection included a video titled “pedo-11 yo fucks daddy,” with a victim of similar age to the child in this case. The content of other videos found in F’s possession “indicate that he desired to have relations with girls his daughter’s age.” Given prior holdings that a low degree of probability of future harm can support removal based on the magnitude of such potential harm [In re I.J. (2013) 56 Cal.4th 766, 778], the CtA concluded “there is substantial evidence of risk of great harm to S.R.—no matter how low the probability—that [F] will sexually abuse his daughter if he is provided unfettered access to her.”
In Re G.C.
4/24/20, CA 4/2: E072514
The TCT order removing 3 children from M and F affirmed. WIC 300 petitions filed on behalf of children based on allegations M was neglecting children and had substance abuse and mental health issues. F was alleged to have failed to protect children from M’s behavior, which he knew or should have known about, and that his deployment in Syria made him unable to make appropriate arrangements for the children. Prior to the disposition hearing, M was noncompliant with drug test request. Investigation also revealed prior dependency action in North Carolina with similar allegations against M of neglect, drug use, and mental health issues. Social worker testified he could not recommend returning children to F because M was still at home. At dispositional hearing, the TCT found all allegations true except for F’s inability to make arrangements for the children. The TCT ordered reunification services, unsupervised visits and return to F if M was not in home. The CtA affirmed as substantial evidence supported findings at dispositional hearing. Concurring opinion (in response to dissenting opinion) states it is the role of social services (not the TCT) to assess risk at the dispositional hearing. “Contrary to the dissent’s views, the necessary findings of substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child if the minor were returned home do not require that the parent be found to be dangerous and the child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child.”
Attorney’s Fee, Costs & Sanctions
Reeve v. Meleyco
3/24/20, CA 3: C085867
In attorney’s action to recover referral fee from another attorney, jury awarded referring attorney damages for breach of contract, quantum meruit, and prejudgment interest. Reversed. The CtA found the referral agreement was unenforceable as client had not executed written consent to the referral fee agreement as required under former RPC 2-200. The client’s written acknowledgment of the referral agreement was not adequate. Quantum meruit award also reversed as it was barred by two-year statute of limitations applicable to actions on agreements not in writing. Plaintiff could not rely on four-year statute for written agreements as “the presence of an unenforceable contract does not extend to four years the limitations period for a claim based on quantum meruit.”
Nuño v. California State University Bakersfield
4/13/20, CA 5: F077889
Self-represented college professor filed a FEHA action against his former employer. Action dismissed after Plaintiff failed to timely amend his complaint following a successful demurrer. Plaintiff attributed his failure to unclear statements made by the TCT at a CMC prior to the deadline to file his amended complaint. Reversed. After noting the priority in California to provide access to justice to self-represented parties, the CtA addressed how courts should balance the duty to treat self-represented parties fairly while maintaining impartiality. In that regard, the CtA reiterated a “general principle [that], a self-represented litigant who is not indigent ‘must expect and receive the same treatment as if represented by an attorney—no different, no better, no worse.’” However, courts also have a duty under the California Judicial Conduct Handbook to communicate with self-represented parties in a clear and understandable manner, to not mislead self-represented parties and to ensure “verbal instructions, orders, and notices given by the court and staff to unrepresented parties are in clear and understandable language for lay persons, avoiding, when possible, legal jargon.” The CtA concluded the TCT’s communications with the Plaintiff at the CMC “were not clear and understandable as to plaintiff’s deadline for filing an amended complaint.” This problem was compounded by the post-CMC minute order which stated the CMC had been continued so “Plaintiff [could] file an amended complaint and…seek legal advice.”