Recent Family Law Cases
[Opinions available at: http://www.courts.ca.gov/opinions-slip.htm]
FAMILY LAW (current through 10/8/2020)
By: Michelle L. Kazadi, CFLS
In re the Marriage of Ana and Carl Silva
8/25/20, CA 1/4: A157554
This appeal arises from an order awarding a credit under Jackson v. Jackson (1975) 51 Cal.App.3d 363 (Jackson) for child support that Husband paid to Wife for approximately 10 months while the parties’ daughter lived full-time with Husband. Wife argues that the trial court impermissibly modified the parties’ child support order retroactively. She also challenged the denial of her request for attorney’s fees and costs as sanctions under Family Code §271. The court of appeal found that the trial court had discretion to allow a credit for Husband’s double-satisfaction of his child support obligations, and the trial court did not err by denying sanctions. The trial court’s ruling is affirmed. In this case, where there are no facts in dispute, the appellate court reviewed the matter de novo the legal questions of whether the trial court had discretion to give a Jackson credit and whether it acted in excess of its jurisdiction and in violation of child support statutes. (See S.C. v. G.S. (2019) 38 Cal.App.5th 591, 598 (S.C.).)
The trial court’s order reflects a recognition that Husband doubly satisfied his child support obligation by caring for the child when she lived with him full-time and through his support payments. Effectively, he double paid. Once the trial court recognized the double- satisfaction, similar to Y.H., the trial court’s election to give a credit in the form of a refund where no arrearages existed “fell within its broad enforcement power to determine the manner in which its child support order is enforced.” (Y.H., supra, 25 Cal.App.5th at p. 307). The appellate court acknowledged that the statute as interpreted in Y.H. required the SSDI benefits to be credited against the obligor’s child support obligation whereas Jackson credits are discretionary. The child support statutes on which Wife relies do not prohibit a credit. “Family law court is a court of equity.” (In re Marriage of Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28, 38). Although a court cannot transgress statutory mandates, family law proceedings “are equitable proceedings in which the court must have the ability to exercise discretion to achieve fairness and equity.” (In re Marriage of Boswell (2014) 225 Cal.App.4th 1172, 1175).
County of San Diego v. P.B. – L.C.
10/16/20, CA 4/1: D075690
Mother appeals from a final order of child support covering periods from 2014 to 2019, when the child turned 18. Mother contends the trial court’s child support order must be reversed because it calculated child support utilizing a 29 percent timeshare for Father during a period of time when Father had no visitation with the child (purportedly due to Mother’s interference with Father’s visitation rights). Mother also challenges the trial court’s failure to include certain payments Father received from his parents (for payment of his attorney fees) as income available for child support. Reversed, child support to be recalculated based on Father’s actual timeshare during the disputed time period, consistent with the statutory guideline under sections 4050-4076. Affirmed as to the issue of not considering the monetary gifts from Father’s parents as income available for support.
The question of whether gifts should be considered income for purposes of the child support calculation is one that must be left to the discretion of the trial court. Father’s parents directly paid for his attorney so Father could obtain necessary representation during this dispute, then stopped paying when they could no longer afford to pay and became dissatisfied with the results. Mother has not established that the payments were made at regular time intervals or in recurring amounts. The payments were for a specific purpose—Father’s attorneys—and are not available to Father for the support of the child.
In re the Marriage of Erica and Francis DeSouza
8/26/20, CA 1/3: A156311
Husband appeals from a post-judgment order finding he breached his fiduciary duty to his former Wife and ordering him to transfer bitcoins and other cryptocurrency to her pursuant to the parties’ judgment of dissolution and to pay her attorneys’ fees and costs. Husband argues he did not breach his fiduciary duty because information he withheld about his cryptocurrency investments was not material and, alternatively, there was no substantial evidence his breach impaired Wife’s interest in their community estate. “Neither point has merit.”
Each spouse is required to fully disclose all material facts regarding community assets. Husband argues his failure to fully inform Wife about the bitcoin investments was not “material” within the meaning of Family Code §1100(e) because “no evidence suggested [Wife’s] knowledge of this information would have affected her decision-making in the least.” The trial court’s contrary finding is supported by substantial evidence and within its discretion. Affirmed.
Rebecca M. Rowan v. Kylie J. Kirkpatrick
9/4/20, CA 1/3: A160568
Plaintiff moved to dismiss the appeal of Defendant. The notice of appeal, filed on July 14, 2020, was taken from three orders of the trial court entered and served on Defendant on February 25, 2020, February 26, 2020,and March 6, 2020. The first two orders involved the parties’ competing requests for civil harassment restraining orders against one another, while the third order declared Defendant to be a vexatious litigant. Due to the global outbreak of COVID-19, the Napa County Superior Court was closed from March 18, 2020, through May 29, 2020, and pursuant to Government Code §68115(a)(4), and the general orders of the superior court, the days of closure were deemed “holidays.” Meanwhile, the court also issued emergency and implementation orders extending the deadlines under the California Rules of Court by 30 days for events occurring within specified time frames. Defendant’s 60-day period to appeal would have expired on April 27, 2020 (for the orders on the restraining order requests) and May 5, 2020 (for the vexatious litigant order). But the superior court was closed to the public on those days, and under the applicable general orders discussed above, those dates were deemed “holidays.”
The appellate court concluded the last day for Defendant to file a timely notice of appeal from the first two orders was June 1, 2020, the day the superior court reopened, and the last day to file a timely appeal from the third order was June 4, 2020. Defendant’s June 2, 2020 motion for reconsideration of the three orders was not a “valid” motion, in that it was untimely (filed beyond the 10-day time limit for reconsideration) and because it was not supported by an affidavit setting forth new or different facts, circumstances, or law. (Code Civ. Proc., § 1008, subd. (b); Branner, supra, 175 Cal.App.4th at p. 1048.) Accordingly, Defendant’s renewed motion did not extend the time to appeal. Defendant’s July 14, 2020 notice of appeal was deemed untimely and was dismissed.
Reales Investment, LLC vs. Thomas Edward Johnson
10/5/20, CA 4/2: E072523
About two months before trial was scheduled to begin, Appellant’s attorney moved to be relieved from the case. Because Appellant did not retain counsel until a few days before trial began, it did not participate in any of the pretrial proceedings mandated by Riverside County Superior Court Local Rule 3401 (Rule 3401). On the morning of the first day of trial, Appellant’s new attorney orally requested a continuance of the trial. The trial court denied the request, and also excluded all documents and witnesses Appellant did not disclose as required by Rule 3401. Because Appellant did not disclose anything under Rule 3401, it was precluded from offering any evidence or testimony at trial, so the trial court granted a nonsuit for Respondent.
Trial continuances are “disfavored” and may be granted “only on an affirmative showing of good cause.” (Cal. Rules of Court, rule 3.1332(c).) The party requesting a continuance must do so “by a noticed motion or an ex parte application” and “with supporting declarations.” (Cal. Rules of Court, rule 3.1332(b).) California Rules of Court, rule 3.1332(c) lists seven circumstances “that may indicate good cause.” California Rules of Court, rule 3.1332(d) lists additional factors the trial court may consider, including “the proximity of the trial date, whether there were previous trial continuances, the length of the requested continuance, and the prejudice that parties or witnesses would suffer as a result of the continuance.” (Thurman v. Bayshore Transit Management, Inc., supra, 203 Cal.App.4th at p. 1126.).
The trial court need not expressly find that a party’s conduct is willful before excluding that party’s evidence at trial in order to ensure a fair trial. Affirmed.
Jane CL Doe v. Charles Kwangksoo Yim
10/5/20, CA 2/4: B299856
Appellant alleged Respondent sexually abused her when she was a minor. Respondent promptly moved to disqualify Appellant’s mother as counsel for Appellant under the advocate-witness rule, arguing that Appellant’s mother would be a key witness in the dispute concerning whether Defendant had exploited his marriage with Appellant’s mother. Regardless of whether Appellant had consented to the representation, Appellant’s mother had a dual role as advocate and witness. Such representation would prejudice Respondent and the integrity of the judicial process. The trial court granted the motion to disqualify Appellant’s mother from representing Appellant in all phases of litigation, relying primarily on the advocate-witness rule. The trial court relied on a finding that Appellant’s mother’s potential misuse of confidential information obtained through her marriage with Defendant would prejudice Defendant and the integrity of the judicial process.
Appellant contended that the trial court abused its discretion in disqualifying her mother as her counsel because: (1) the advocate-witness rule does not apply to pretrial activities, and the court failed to make sufficient findings regarding the parties’ competing interests to warrant the disqualification at trial in the face of Appellant’s consent to the dual role; and (2) no substantial evidence supported the court’s finding that Appellant’s mother had acquired confidential information through her marriage to Defendant that she could use to Appellant’s advantage.
The trial court reasonably concluded that Appellant’s mother is nearly certain to be a key witness at trial. Therefore, to effectuate the advocate-witness rule’s purpose of avoiding factfinder confusion, the trial court acted within its discretion in applying the rule to disqualify Appellant’s mother not only at trial, but also in (1) depositions; and (2) pretrial evidentiary hearings at which Appellant’s mother is likely to testify. The trial court also acted within its discretion in disqualifying Appellant’s mother from representing Appellant in all other phases of the litigation on the grounds of the potential misuse of confidential information obtained through her marriage with Defendant. Affirmed.
DEPENDENCY (current through 10/13/2020)
By: John Nieman
In re A.C.
8/28, CA 2/8: B302248
W&I §361.2 requires placement with a prior noncustodial nonoffending parent upon removal from the offending custodial parent absent clear and convincing evidence of substantial risk of harm to the minor(s). The risk of harm might logically come in the form of unfitness of the prior noncustodial parent. This case holds that such a risk needn’t have anything to do with the fitness of that prior noncustodial parent.
In re V.L.
9/1, CA 2/2: B304209
Affirmed that a domestic violence incident supported trial court’s finding that clear and convincing evidence justified removal of minors from father’s care and custody. The appellate court applied the heightened standard of review of trial court findings by clear and convincing evidence (as opposed to say, preponderance) required by Conservatorship of O.B. (2020) 9 Cal.5th 989 that “the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true” at 995-996.
In re J.W.-P.
9/8, CA 1/5: A156550
Father made repeated assertions and requests to establish parentage during dependency proceedings. Despite having counsel during some of the proceedings, no factual inquiry into his parentage claims were made through dismissal of the case. If dependency proceedings fail to adequately determine parentage as required by W&I §316.2, findings and orders made subsequently may be subject to reversal.
In re Samuel A.
9/24, CA 2/7: B302700
Mother petitioned under W&I §388 that dependency be dismissed pursuant to W&I §390. Trial court erroneously applied Code of Civil Procedure §659 to dismiss mother’s petition. Trial courts must determine if a petition under W&I §388 makes a prima facie case prior to dismissal of that petition. If a W&I §388 petition states a prima facie case, the trial court must make factual findings in a trial or hearing accordingly.
In re J.P.
10/1, CA 6: H047586
Court’s sua sponte change under W&I §385 of its parentage finding was proper. Dependency courts make parentage determinations pursuant to the UPA. FC §7642 though more general in scope, permits a dependency court to make changes of its parentage findings in open cases as appropriate, despite FC §7636 that makes parentage findings res judicata.
In re S.S.
10/2, CA 4/2: E074852
Because of a failure to assist father in the underlying source of his inability to parent his daughter, namely poverty, parental rights termination reversed and remanded for further efforts to reunify father and daughter. Trial court failed to notice for appeal by extraordinary writ as required, allowing father to appeal issues back to setting the W&I §366.26 hearing.
In re Dominic F.
10/6, CA 2/8: B302482
Formal notice requirements under the Indian Child Welfare Act (ICWA) are not required where there was no reason to know that a child might be eligible for application of the ICWA. Appellate court affirmed that the court’s ruling did not violate formal notice requirements of newly defined “reason to know” in W&I §224.2(d) per AB 3176 of 2019.
In re N.S.
10/9, CA 4/1: D077177
A declaration by an Indian child’s tribe that guardianship was the best permanent plan under W&I §366.26(c)(1)(B)(vi)(II) did not prevent the trial court from making an independent determination that adoption was the best permanent plan. Judgement also affirmed regarding challenges to the trial court’s determinations related to application of the ICWA and the beneficial bond exception, W&I §366.26(c)(1)(B)(i).
In re Anna T.
10/13, CA 2/7: B299987
A juvenile court may issue custody and visitation orders as required by W&I §362.4 for use in family court when terminating its jurisdiction. Failure to exercise that option and issue orders accordingly requires reversion to family court orders (if any) made prior to the inception of the juvenile court’s jurisdiction. Other orders issued by the juvenile court terminate as a matter of law upon dismissal.