Recent Family Law Cases

Lak v. Lak
6/12/20, CA 4/3:  G056784
https://www.courts.ca.gov/opinions/documents/G056784.PDF

F objected to CS withholding order issued against his social security disability insurance (SSDI) payments and sought reimbursement for overpayments and collection of arrears in excess of 5% of his SSDI in violation of FC 5246(d)(3). TCT denied F’s requests.  Affirmed. Whether FC 5246(d)(3) should be applied to collection of an arrearage is a four-part test: obligor must be disabled, obligor “meets the SSI resource test,” obligor is receiving SSI/SSP or would but for excess income restrictions, and obligor supplies DCSS with proof of eligibility for, and if applicable, receipt of SSI/SSP or SSDI. TCT determined father had not met his burden of proof regarding third part of test because F left I&E fields pertaining to other assets blank but had written “0” for deposit accounts.  “It would have been unreasonable for the court to infer Father intended those blank lines to be treated as zeros because he was inconsistent and did not leave all the lines blank.”  CtA declined to follow Hopkins holding that under FC 17450(c)(2) [which has identical test to FC 5246(d)(3)] parts 2 and 3 do not apply once parts 1 and 4 of the test have been satisfied. CtA rejected F’s argument that derivative benefits received by M which exceeded F’s monthly support obligation prevented withholding money from his SSDI benefits. CtA also rejected F’s argument he was entitled to reimbursement for the overpayment of arrears under Marriage of Dandona & Araluce and FC 3653.  CtA held FC 3653 “clearly applies to a specific kind of overpayment, i.e., one created when a trial court orders a retroactive reduction in monthly support. It plainly does not concern payments made towards arrearages.” FC 3653 also requires repayment by the person who received the funds, not DCSS.

Nicole G. v. Braithwaite
6/3/20, CA 2/8:  B294228
https://www.courts.ca.gov/opinions/documents/B294228.PDF

Non-marital couple live prior to separation in a home co-owned by the couple. At time of separation, Petitioner moved from residence. She subsequently files a DVPA request and is granted sole and exclusive use of the residence. Respondent argued that since she had already moved out and because there was a separate partition action pending between the parties concerning the residence, it was improper for the TCT to grant Petitioner sole and exclusive use of the residence in the DVPA action. Affirmed.  Petitioner had satisfied the three requirements necessary for a court to grant exclusive use of a residence to a party under FC 6321(b): 1.  She had presented evidence she had a right under color of law to use and possess the property; 2.  There was “ample evidence” Petitioner had been assaulted by Respondent; and, 3.  “There  was  evidence of  continued  physical/emotional  harm  should  the  parties reside  in the  co-owned  property together.”  The fact that Petitioner moved from the residence on a temporary basis was not a reason to deny her exclusive use and possession of the residence.  “Her decision  to  move-out  of  the  shared  Property to  escape  further abuse  and  stalking amidst  the  filing of  her DVRO request  does  not bar a trial  court  from  using  its authority to  award  a  protected  party with  temporary  use, control, and possession  of  a Property as part of a DVRO.” CtA also confirmed that as a prevailing party on an appeal arising from the DVPA, Petitioner was entitled under FC 6344 and CRC 3.1702(c) to seek her attorney fees on the appeal in the TCT.

McCord v. Smith
6/26/20, CA 4/3:  G057614
https://www.courts.ca.gov/opinions/documents/G057614.PDF

Respondent appealed granting of DVRO to former domestic partner. Affirmed. “The trial court’s issuance of a restraining order under the Domestic Violence Prevention Act is a discretionary matter. (Fam. Code, § 6300 et seq.; Herriott v. Herriott (2019) 33 Cal.App.5th 212, 223 (Herriott); In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698,702.)  We will not disturb a trial court’s exercise of discretion unless, as a matter of law, given all the relevant circumstances, we can say (1) the trial court exceeded the bounds of reason, or (2) no reasonable judge would have made the same order.”  Decision also notes that “[c]redibility determinations are the province of the trial court.” Based on these principles, the TCT did not abuse its discretion in granting the DVRO.  “The trial court’s findings that McCord’s statements and actions were a means of exercising control and dominion over Smith and threatening her were amply supported by the evidence. Those acts were sufficient to constitute a disturbance of her peace, as well as stalking, threatening, and harassing.” Respondent’s argument that Petitioner had “improperly provided significant new evidence on the date of the hearing, which prejudiced him” was waived because Respondent had not objected nor requested a continuance with the trial court. CtA also addressed financial control issues raised in the TCT.  “McCord’s continued involvement with Smith’s financial affairs, as to which McCord had no actual connection, was relevant to the court’s finding that he was harassing Smith or destroying her mental or emotional calm.” Respondent’s argument that the TCT erred in not allowing him to present evidence from his iPad was not error.  Respondent could have testified about the contents of the iPad without directly introducing the iPad (or its contents) into evidence. Respondent also appealed dismissal of contempt citation he had filed against Petitioner.  However, orders in a contempt case are “final and conclusive” and are not appealable – “an appellate court cannot remand a contempt cause in which the order has been declared void and annulled to the superior court to reinstitute contempt proceedings.” [In re Bloom (1986) 185 Cal.App.3d 409, 412-413.]

In Re M.W.
6/5/20, CA 3:  C089997
https://www.courts.ca.gov/opinions/documents/C089997.PDF

Alleged F appeals order terminating his parental rights asserting non-compliance with ICWA. Affirmed. Although M reported Native American heritage and submitted ICWA-020 notification, no tribe confirmed child was eligible for enrollment. In response to the Department’s inquiry regarding heritage, F (who was brought into case once his paternity was established) reported he had Indian ancestry but was not a member of, nor seeking membership, in a tribe. F’s relatives were contacted and could not establish ancestry. TCT ordered further ICWA inquiry, which was carried out. CtA decision based on 2019 amendments to WIC 224.2 which differentiate between an inquiry required when a court has a reason to believe a child has Native American ancestry vs. when a court has a reason to know a child has Native American ancestry. (Italics added.) “As a preliminary matter, section 224.2, subdivision (e) does not require that any extensive or particular formal documentation of ICWA inquiry be provided to the tribe. Subdivision (e)(3) of that section provides that contact with the tribe “shall include sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination.” Similarly, section 224.2, subdivision (e) does not require that the Department report its inquiry efforts to the juvenile court in the form of a declaration or in any particular form at all.”

In Re Samantha H.
5/26/20, CA 2/8:  B300065
https://www.courts.ca.gov/opinions/documents/B300065.PDF

M appeals order selecting adoption as permanent plan for Samantha H. M asserted that TCT erred in ordering adoption absent evidence that prospective non-relative adoptive parent was advised of and affirmatively rejected guardianship in lieu of adoption.  Affirmed. CtA addressed merits of M’s appeal notwithstanding M’s waiver of issue by not raising issue as an objection with the TCT. “We find no statute or case requiring the juvenile court to inquire whether a willing non-relative adoptive parent was advised of and then rejected the option of guardianship. And we decline to graft such a requirement onto the adoption protocol in light of the Legislature’s preference for adoption as a dependent child’s permanent plan.” M’s reliance on In Re Fernando M. was misplaced – that case involved a caretaking relative. Further, the adopting grandmother had been told she had to adopt the child or face losing child to another adoptive family.

In Re B.P.
6/2/20, CA 2/8:  B303804
https://www.courts.ca.gov/opinions/documents/B303804.PDF

M appeals detention order under WIC 342. Child services department moved to dismiss as 342 detention order is interlocutory and not appealable. CtA agreed and dismissed appeal. A 342 detention order is similar to a WIC 300 petition, and therefore, cannot be appealed. “Like orders entered on an original section 300 petition before the dispositional order, orders issued before the dispositional order on a section 342 petition are interlocutory and not appealable.” CtA rejected M’s argument that a detention order is appealable because it is an order after disposition of the original 300 petition.  “As we have explained, the section 342 subsequent petition will require new jurisdiction and disposition hearings, leading to a disposition order on the new allegations.”

In Re J.M., JR.
6/17/20, CA 2/1:  B298473 and B301428
https://www.courts.ca.gov/opinions/documents/B298473.PDF

M appeals dependency court order denying WIC 388 petition to place J.M. in her custody, or in the alternative, further reunification services. Reversed. “Mother addressed the domestic violence issues that comprised the entire basis for the sustained dependency petition regarding J.M.” as well as complying with other orders pertaining to her living condition, drug testing and receiving mental health services, imposed by the Court. Such evidence demonstrated a substantial change of circumstances warranted to trigger the “escape mechanism” provided by WIC 388 between termination of reunification services and termination of parental rights. The fact that M had not proven she had received specialized training for J.M.’s autism did not constitute a basis to deny her petition. “The court’s speculation that Mother requires such training—again, despite uncontradicted evidence to the contrary—is an arbitrary and unreasonable basis for concluding placement with her would not be in J.M.’s best interests.” A trial court cannot “simply compare” household of parent and caretakers in deciding WIC 388 petition. “Thus, rather than such a “one dimensional” simple best interests comparison, a court must perform a more nuanced best interests analysis” which addresses the basis for the dependency, the bond of the child to the parents and caretakers and the nature of the changed circumstances.

Taylor v. County of Los Angeles
6/10/20, CA 2/8:   B296537
https://www.courts.ca.gov/opinions/documents/B296537.PDF

PI attorney asserted lien after representing parties in a wrongful death suit for one month. Attorney submitted contradictory invoices regarding the amount of time attorney worked on the case and had time amounts that were in even hours and not itemized.  TCT denied attorney’s $308,000 fee request and affirmed TCT’s award of $17,325.  “We publish to underline that contemporaneous time records are the best evidence of lawyers’ hourly work. They are not indispensable, but they eclipse other proofs. Lawyers know this better than anyone. They might heed what they know.”

Hernandez v. FCA UC LLC
6/11/20, CA 2/8:  B296516
https://www.courts.ca.gov/opinions/documents/B296516.PDF

Following a settlement agreement, party failed to file a fee motion prior to court-ordered deadline. Court refused to extend deadline. Party then filed a motion for relief under CCP 473(b). TCT denied request, finding counsel’s inadvertent failure to timely file a fee motion did not cause dismissal of the action. Affirmed. The trial court is required to vacate the dismissal “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”  As a matter of law, the case was dismissed due to the settlement, not the failure to file the fee motion. Relief under CCP 473 was therefore, not warranted.

Pacifica First National, Inc. v. Abekasis
6/15/20, CA 2/8:  B298292
https://www.courts.ca.gov/opinions/documents/B298292.PDF

Request to set aside default denied when attorneys representing defaulting party failed to provide the evidence necessary to establish basis for set aside: “At the moment of truth, the two people who would know about the vital issue remained mum.” CtA also states, “When appreciable sums are in play, it is mysterious why lawyers on both sides think the small cost of court reporting is a good cost to avoid. We publish this opinion in part to discourage misplaced thrift.”

Masellis v. Law Office of Leslie F. Jensen
6/19/20, CA5:  F075772 and F076362
https://www.courts.ca.gov/opinions/documents/F075772.PDF

In legal malpractice action arising from a settlement reached in a dissolution action, FL attorney argued that a higher burden of proof, “legal certainty” of a better outcome, was required. TCT and CtA disagreed. “In California civil litigation, a preponderance of the evidence is the default burden of proof. (Evid. Code, § 115.) No published legal malpractice case using the term “legal certainty” expressly states the default burden of proof is replaced by a standard higher than preponderance of the evidence. Indeed, there is little discussion of the burden of proof in the legal malpractice cases using the term “legal certainty.” Consequently, we conclude the term is ambiguous. We resolve that ambiguity by interpreting the statement that a plaintiff must present “evidence showing to a legal certainty that” the alleged breach of duty caused an injury (Filbin, supra, 211 Cal.App.4th at p. 172) as simply referring to the degree of certainty inherent in the applicable burden of proof. For “settle and sue” legal malpractice actions, we conclude the applicable burden of proof is a preponderance of the evidence. (Evid. Code, § 115; see Johnson, Causation and “Legal Certainty” in Legal Malpractice Law (2018) 8 St. Mary’s J. Legal Mal. & Ethics 374, 377–379.)” The decision also recites (but does not make a finding) regarding attorney’s failure to take any depositions in the case. The following opinion from Plaintiff’s expert witness, James Hennenhoefer, recited in the opinion is of note: “Attorney had taken no depositions in the case and it is below the standard of care not to take depositions in a family law case where the assets are in the million-dollar range.”