Recent Family Law Cases (current through 8/24/20)
[Opinions available at: http://www.courts.ca.gov/opinions-slip.htm]
By: Stephen D. Hamilton, CFLS
Marriage of Hein
7/21/20, CA5: F076581
M appeals child support calculation for self-employed F based on 1) TCT allowing deductions for depreciation in calculating income available for support and 2) presuming F’s tax returns were presumptively correct, thereby shifting burden of proof to M. Reversed. Following In re Marriage of Rodriguez (2018) 23 Cal.App.5th 625, CtA held that depreciation expenses for equipment and other assets “does not require an outlay of cash and, thus, does not reduce the funds available for child support.” However, opinion does not address expenditure of funds to acquire a capital asset. CtA also held that the presumption concerning tax returns identified in Marriage of Loh (2001) 93 Cal.App.4th 325 should not apply where the payor is a “self-employed parent who had organized his or her business or businesses into multiple wholly owned entities.” “In such circumstances, we conclude the burden of proving that the expenses claimed on the tax returns constitute “expenditures required for the operation of the business[es]” is properly allocated to the self-employed parent who controls the corporations.”
Marriage of Mullkonkal v. Kodiyamplakkil
6/29/20, CA3: C085825
TCT does not have discretion to deny FC 2641 student loan reimbursement for payments made during marriage on pre-marital student loan debt, even if spouse seeking reimbursement did not have income or assets which contributed to payment of the loan during marriage (e.g. unemployed spouse).
Coley v. Eskaton
7/8/20, CA3: C084328
In the context of an HOA action for breach of fiduciary duties, the CtA found that fiduciaries “were bound not to approve a transaction in which they had a material financial interest unless that transaction was ‘fair and reasonable’- meaning the transaction was entered in ‘good faith’ and was ‘inherent[ly] fair’ from the viewpoint of the corporation and those interested therein.’” [Citations omitted].
In Re Brace
7/23/20, SC: S252473
At request of 9th Circuit, CA Supreme Court issued ruling “to determine which presumption governs the characterization of joint tenancy property in a dispute between a couple and the bankruptcy trustee of one of the spouses.” At issue was the form of title presumption (EC 662) and community property presumption (FC 760). If the EC 662 presumption prevails, a creditor could only reach a debtor’s one-half interest in the property – if the FC 760 presumption prevails, then the creditor could reach all of the property. “Ultimately, we hold that Evidence Code section 662 does not apply when it conflicts with the Family Code section 760 community property presumption. Further, we hold that when a married couple uses community funds to acquire property with joint tenancy title on or after January 1, 1975, the property is presumptively community property under Family Code section 760 in a dispute between the couple and a bankruptcy trustee. For property purchased before January 1, 1975, the Legislature left intact a presumption that separate property interests arise from joint tenancy title.” The SCT further held that “joint tenancy titling of property acquired by spouses using community funds on or after January 1, 1985 is not sufficient by itself to transmute community property into separate property.”
In re T.S.
7/21/20, CA 2/7: B293453
TCT granted M sole legal and physical custody of children at WIC 364 hearing, granting visitation to F. F appealed on grounds the orders were not in children’s best interests and that TCT wrongfully denied his request for an evidentiary hearing on custody and visitation. Reversed. A WIC 388 Petition is not required as a condition precedent to holding an evidentiary hearing before a dependency court terminates jurisdiction and issues exit orders. However, a trial court may condition the evidentiary hearing on an offer of proof – the offer of proof given by F in this case was sufficient to warrant an evidentiary hearing.
Serena M. v. Superior Court
7/24/20, CA5: F080612
CtA issues writ relief after TCT found reasonable services were offered or provided to M prior to terminating reunification services. M was denied meaningful opportunity to repair relationship with teenage daughter when TCT issued order forbidding all in-person contact. At some point during the 18 months of jurisdiction, the order for no contact became unreasonable.
In re: S.P.
7/31/20, CA 2/5: B302804
Although CtA found that child services department had not acted in due diligence in locating and notifying F of jurisdiction and disposition hearings, error found to be harmless and order terminating parental rights affirmed. CtA affirmed that a WIC 388 petition is a “proper vehicle for a due process challenge….” However, such due process challenges are subject to the harmless error analysis. In this case, F had not shown a reasonable probability of a more favorable outcome in light of his failure to make a reasonable effort to treat the problems that led to removal of children from that parent in the past.
In re: M.P.
8/3/20, CA 2/5: B306181
CtA reversed TCT order continuing six-month hearing beyond the time period authorized under WIC 364. Covid-19 emergency orders did not extend time limits for “time-sensitive, essential functions,” which included WIC 364 hearings, beyond the 60-day continuance authorized by the Governor’s March 7, 2020, executive order.
In re: S.P.
8/6/20, CA 2/6: B302636
Dependency court has the authority to order vaccinations for dependent children under its jurisdiction, notwithstanding H&S 120370(d)3(c) [which empowers a state public health officer to revoke a medical exemption from vaccination].
In re: I.B.
8/7/20, CA 4/3: G058814
TCT order returning younger sibling to M but leaving older sibling with foster parents (who had been interested in adopting both boys) affirmed. Evidence that older sibling treated his brother as a “human punching bag” was good cause to separate siblings in absence of bonding study or expert opinion to “contradict the overwhelming evidence the abusive nature of the sibling relationship was unhealthy.”
In re: J.W.
8/11/20, CA 4/2: E074079
While the UCCJEA is mandatory in dependency actions and determines which state has jurisdiction, the UCCJEA does not regulate a California trial court’s fundamental jurisdiction. For this reason, it can be forfeited by a failure to raise the issue in dependency court.
Georgeanne G. v. Superior Court
8/18/20, CA 2/7: B301629
M’s writ petition to set aside termination of reunification services at WIC 366.26 hearing granted. While the issue of “parental insight” into the problems that led to removal can be considered by a dependency court, in this particular case the evidence was insufficient to establish child was at substantial risk of harm if returned to M’s home due to her lack of insight.
ATTORNEY’S FEES & COSTS
Marriage of Ankola
8/12/20, CA 6: H045092, H045203, H046567
W’s initial request for a DVRO against H was denied, with H awarded $10,000 in attorney fees as the prevailing party in the DVRO action. Based on subsequently events, W filed a second request for a DVRO, which was granted. In addition to awarding W fees for the second DVRO, the Court rescinded the order awarding H fees for the first DVRO. H appealed and CtA reversed. Because the trial court rescinded the order based on new evidence, rather than the evidence presented at the original proceeding, the trial court “in effect improperly granted a new trial, a result which lies outside its inherent powers.”