Recent Family Law Cases (current through 1/4/19)
[Opinions available at: http://www.courts.ca.gov/opinions-slip.htm]
By: Stephen D. Hamilton, CFLS
W.M. v. V.A.
M obtains decree in Belarus finding the residence of child is Belarus, where M resides. F, unaware of Belarus action or decree, files custody petition in CA.M successfully moves to quash service of California action under FC 3426(a), the “simultaneous proceedings” statute. CA court grants motion to quash, finding that although CA would otherwise have jurisdiction, jurisdiction cannot be exercised if a child custody proceeding has already been commenced in a court of another state “having jurisdiction substantially in conformity with” the UCCJEA. The TCT expressly found Belarus court had jurisdiction “substantially in conformity with” the UCCJEA. Reversed. “Because father received no notice of the Belarus action, and because notice was not given “in a manner reasonably calculated to give actual notice” (FC 3408(a)), the Belarus court did not have jurisdiction in conformity with UCCJEA standards. The trial court therefore erred in granting mother’s motion to quash and refusing to exercise its jurisdiction.”
David L. v. Superior Court
12/17/18, CA4/1: D073996M
CA may not exercise personal jurisdiction over a nonresident in a paternity action where M and child live in CA but conception occurred in another state.F’s infrequent trips to CA for business purposes created a tenuous relationship with the state at best which did not support exercise of jurisdiction.
C.A. v. C.P.
Paternity, Third Parent
Biological father (BF) conceived child with M, who was at the time of conception (and still was at time of hearing) in an intact marriage with H.H did not initially know he was not child’s father.M and H raised child in their home.For the first three years of the child’s life, they allowed BF “to act in an alternate parenting role, and the child bonded with [BF’s] close relatives.”All contact was cut off after BF filed this action.TCT found M had initially mislead the court regarding BF’s involvement in child’s life, but that the “lack of candor” by M did not break the strong bond BF previously developed with the child.TCT then made a finding BF was a third parent to child.Affirmed on appeal.H conclusive parentage under FC 7540 was not the equivalent of exclusive parentage, preventing finding of third parent under FC 7612(c).BF had presumed parent status under FC 7611, which was not lost due to temporal gap in contact after action commenced.M and H’s claims that FC 7612(c) violates the Constitution were also dismissed by the CtA.
Lief v. Superior Court
1/2/19; CA 4/1: D074947
Child Custody & Visitation (Move-away)
Writ relief requested after TCT allowed M to move with minor child to Israel before expiration of 30-day statutory stay under CCP 917.7.TCT held that the 30-day stay commenced with the issuance of the tentative ruling.CtA disagreed– the stay begins on the date a judgment or order is entered, and a statement of decision is neither.
Marriage of T.C. and D.C.
12/18/18, CA4/1: D073182
W sought modification of Osler-Smith order, alleging that a significant increase in her income represented a change of circumstances.TCT agreed and reduced spousal support.CtA held that substantial evidence supported finding of change of circumstances warranting a reduction in support.However, because TCT “failed to consider the parties’ reasonable expectations as expressed in their dissolution agreement that Wife’s earnings would continue to increase,” reversed and remanded.
Marriage of Vaughn
11/27/18, CA2/6: B286871
Community Property, Bankruptcy
H appealed after TCT ruled that his outstanding debt on a loan from a family partnership—in which former W was a limited partner—was nondischargeable in bankruptcy.TCT found the debt was exempt from discharge pursuant to 11 USC 523(a)(15) .CtA affirmed, holding that “… when the nature of a debt is such that its discharge will directly and adversely impact the finances of the debtor’s spouse or former spouse, it is nondischargeable in bankruptcy, even if it is not directly payable to the spouse.”
In Re Bruno M.
11/2/18, CA 2/3: B287537
F contested permanent restraining order issued in favor of children as part of juvenile court’s disposition orders, solely contending on appeal the order protecting the children was not supported by substantial evidence because the children were “never in the line of fire” when he beat mother.CtA disagreed.“We conclude the children were indeed at risk of physical harm and, in any event, father’s lengthy history of domestic violence against mother and the parents’ frequent reconciliations justify the minors’ inclusion in the restraining order.”
Marriage of Davila and Mejia
11/19/18, CA 2/7:B279874
At hearing on request for DVRO, W testifies as to acts of abuse not set forth or described in her application for the order, to wit that H had placed a gun to her head.TCT found W’s testimony credible and issued DVRO.On appeal, H asserted W should not have been allowed to testify about acts of DV not specifically alleged in the request.However, H did not provide any legal authority to support his position and did not object to the testimony during the hearing, forfeiting the argument.“Even if [Husband] had not forfeited this argument, the trial court did not abuse its discretion in considering” the testimony regarding the gun incident.General allegations of threats of physical harm in the application were sufficient, and H had the opportunity to respond to the testimony at the time of the hearing.
Martindale v. Ochoa
Protected party sought to extend previously granted three-year domestic violence restraining order.TCT denied the request, finding “appellant had not shown “reasonable apprehension” of future abuse. Affirmed.Trial court could properly deny request based on additional evidence submitted at renewal hearing.In this case, TCT found evidence of Respondent’s “intentional avoidance of unintended contact” with the protected party.TCT also found that protected party had knowingly joined the restrained party’s gym and made negative comments about restrained party to restrained party’s friend.These acts were found to be “inconsistent” for someone fearful of domestic violence.
S.Y. v. Superior Court
12/19/18, CA4/1: D073450M
Trial court improperly considered F’s greater fluency in English as a rebutting factor under FC 3044.However other substantial evidence supported TCT ruling that F had rebutted the presumption of detriment, and denied writ seeking to reverse TCT order granting joint legal and physical custody to both parents.TCT was required to and did consider the seven factors set forth in FC 3044(b).However, TCT is not required to specifically address each of the seven factors in its statement of decision (disagreeing with Jaime G. v. H.L. (2018) 25 Cal.App.5th 794).“The trial court need only provide sufficient reasons to permit meaningful appellate review.”
In re Israel T.
11/21/18, CA2/4: B286821
F appealed juvenile court jurisdictional order, even though TCT found “no substantial risk of serious harm to the children from the parents’ actions, and at the dispositional phase, returned the children to the custody of the parents, finding that the parents did not constitute “any kind of risk to the children.”’Based on that finding, CtA reversed.Based on the cited findings, the TCT could not find the statutorily required elements for exercising jurisdiction had been met.
In re Cody R.
M appeals order terminating parental rights, arguing social service agency failed to give preferential consideration to placement with relatives. Appeal dismissed based on finding M did not have standing to appeal the placement order, as M only challenged placement and not the termination of her parental rights.M’s writ of habeus corpus used to present claim of error based on evidence not in the appellate record was denied.“We hold that habeas corpus in dependency proceedings is limited to claims of wrongful withholding of custody of the child, including lack of jurisdiction, and claims of ineffective assistance of counsel.”
In Re J.Y.
Dependent child removed from prior caretakers to be placed with caretaker of child’s two siblings, with all to be adopted through tribal customary adoption. M appealed.In consolidated appeal, M also asserted Tribe did not have standing to petition to modify orders in juvenile court.Affirmed.M did not have standing to appeal the placement order as her reunification services had long since terminated (although her parental rights had not yet been terminated).CtA also found Tribe had standing to file modification petition under WIC 388(a)(2).TCT also appropriately gave full faith and credit to amended tribal customary adoption order.
Gassner v. Stasa
12/17/18, CA4/2: E068058
In civil action, TCT issued cost order against Plaintiff and their attorney after action dismissed voluntarily without prejudice.Reversed.The order awarding costs against the attorney was void, as the attorney was not a party.