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VOLUME 16 | NUMBER 3 | DECEMBER 2015
 
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IN THIS ISSUE
 
Message from the Editor
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Message from the Chair
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Upcoming Events
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Articles
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Hot Listserve Links
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Recent Case Summaries
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The Family Law E-News is published monthly by the Family Law Section

Editor:
David K. Yamamoto
david@dkylaw.com


 
Message from the Editor

David K. Yamamoto

This edition of the E-News includes a total of 8 articles. We would like to acknowledge and thank each of the following contributors for their fine work, time and effort:

Honorable Maren E. Nelson, Ronald F. Brot (Chair of the Family Law Executive Committee), Leena S. Hingnikar, Jeffery S. Jacobson, Elizabeth Potter Scully, Joseph P. Spirito, Jr., Stephen L. Cawelti, Peter M. Walzer, Terry M. Hargrave, Eve Lopez, Charles Wake, and Paula Kane.

As always, recent case summaries, summaries of recent legislation, upcoming events, and the Hot Listserve Threads are included.

Don’t miss the January 23, 2016 “Parentage Litigation and Child Support Issues” program chaired by our CLE Chairperson, Paula Kane and the May 14, 2016, Family Law Symposium entitled “Family Law in the 21st Century” chaired by Raymond Goldstein.

The original content presented below has been published after submission from members of the family law section and other family law professionals. Any member may submit a piece for publication, and I would encourage submissions from any member with original material they would like to share. As always, do not hesitate to contact us with your comments or suggestions.

Editor of the E-News
David K. Yamamoto
david@dkylaw.com

Message from the Chair

Ronald F. Brot

About a month ago the Family Law Bar lost one our most beloved members, Connolly Oyler.

I announced his passing on the Listserve on October 23, 2015, and shared that for no particular reason Connolly volunteered to be my unofficial mentor when I began practicing family law several decades ago. What followed was an outpouring of personal remembrances from family law attorneys throughout the county. While there was a great diversity of sources, the message was astonishingly uniform.

Person after person remembered Connolly for his unwavering willingness to help them. He was their mentor and their friend. Connolly took a genuine interest in helping many of us learn family law and how to practice in a professional manner. He taught us by example not only to serve our clients, but also to contribute our time and efforts to the Family Law Bar and to the Bench to ensure that all family law litigants have meaningful access to justice. His legacy for us is a generosity of spirit and service. If we are willing to emulate Connolly’s devotion to helping others, his legacy will endure.

The practice of family law is more challenging than ever. The law itself has become increasingly complex. The level of acrimony between parties, and between lawyers, seems palpable. With the changes in the economy, it is often difficult to support our families. Events such as the deadly terrorist attacks in Paris threaten our sense of safety and security. Given this climate, is it fair to ask that we take time away from our practices and our families to be of service?

It is not only fair, but essential that we remain willing to extend ourselves beyond the current case and the current fee. Hillel said: “If I am not for myself who will be for me? But if I am only for myself, what am I? If not now, when?”

The Family Law Section has a long history of contribution to the practice of family law, and offers its members the opportunity to participate and be of service. This year our committee structure was modified so that each of our Standing Committees has both a Chair and Vice-Chair to establish better continuity of leadership from year to year. Moreover, this year we have appointed members from the Section at large to serve on our Standing Committees, even though they are not yet members of the Family Law Section Executive Committee (FLEXCOM). We have created more opportunities for involvement in the work of the Section, which will lead to fresh ideas from new volunteers for the benefit of FLEXCOM, and more opportunities for service.

Our Standing Committees include: (1) Family Law Symposium; (2) Child Custody Colloquium; (3) Continuing Legal Education (Programs); (4) Court Liaison; (5) Legislation/Amicus Brief; (6) Website Development/News and Review (E-News); (7) Section Membership Outreach and Development; (8) State and Local Bar Liaison; (9 ) Mediation/ADR; and (10) Forms and Court Rules. All non-FLEXCOM members who volunteered have been appointed to work on one committee or another. Our opportunities are many and varied.

The Family Law Section offers the opportunity to be involved in timely and cutting edge issues. Earlier this year, under the leadership of David Yamamoto, we presented the 2015 Child Custody Colloquium. This Colloquium was a forum for very interesting and often spirited discussions between the Bench, Bar and mental health community on the subject of Bias.

FLEXCOM also quickly became involved with the legislative proposals in response to Marriage of Davis. We co-sponsored a Town Hall Meeting with the Family Law Section of the Beverly Hills Bar Association, featuring presentations by several attorneys and Judges Kenneth A. Black (ret.) and Thomas Trent Lewis, as well as an open podium for participation. We have solicited and considered views from the Listserve community. FLEXCOM will soon make recommendations to LACBA with the Family Law Section’s position on this important issue.

Beyond working on projects for the Family Law Section, the opportunities for service abound. Who, like Connolly, will see a question or comment posted on the Listserve, and then privately telephone the person who posted? Who will offer to help if questions arise? Who will exhibit Connolly’s generosity of spirit so that the less knowledgeable attorney is not made to feel shamed or inferior simply for not yet knowing an answer to something others often take for granted?

Who has really made an effort to bring civility to an actual family law case? Who has heeded Judge Nelson’s suggestion that we have a cup of coffee with opposing counsel?

Seemingly small but yet significant opportunities to be of service present themselves to us every day. When we see someone with a jury duty slip not knowing where to go, we can stop to help which will take but a second, rather than rush to get our place at security. When we see someone obviously uncertain about the location of their courtroom, we can offer to point the way. And when outside a Courtroom, when asked - are you a lawyer? - we can respond with more courtesy and compassion.

Can we make a difference? I am reminded of the old man on the beach at dawn after the tide washed up thousands of little fish. One by one, the old man bent down, picked up a dying fish, and threw it back into the surf to swim away. A stranger approached, and asked the old man - do you think what you are doing really matters? The old man bent down, threw another little fish into the water, and chuckled: Well, it mattered to that one!

Rise to the challenge.

 

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Upcoming Events
 
Save the Date

Saturday, January 23, 2016
A 3-hour MCLE program sponsored by the Family Law Section of the Los Angeles County Bar:

Parentage Litigation and Child Support Issues

When: January 23, 2016, 8:30 a.m.-12:20 p.m.
Where: InterContinental Hotel, Los Angeles - Century City
Improve your family law advocacy and trial skills on the important topics of parentage and child support. This program will cover:

1. Parentage Notwithstanding Genetics: California parentage law is made up of a series of statutes that wind a trail from common law to the reflection of modern day values and redefinition of family.  Judge Scott Silverman and Glen H. Schwartz Esq. will explore that unique statutory scheme, in which the issue is not always dependent on the genetic truth.

2. Guideline Child Support and Beyond: A panel of experts, Bench and Bar will discuss the nuances in obtaining child support orders, including strategies for identifying sources of income, imputation of income issues and the use of experts, the pros/cons of Ostler/Smith orders, support for special needs and adult disabled children, and application of the statutes governing penalties for delinquent child support payments.
Paula Kane, Esq.
LACBA CLE Chairperson

 
Other Programs


February 23, 2016:
Meet the Judges Night- Beverly Hills Bar Association: Email blasts will start going out Monday, January 25, 2016.

May 14, 2016: Family Law Symposium entitled “Family Law in the 21st Century”.

June 4, 2016: Sign on the Dotted Line- with Southwestern University School of Law: Co-sponsor application just received from LACBA, will follow up.
 
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Articles
 
On Elkins and Experts

Honorable Maren E. Nelson

Editor’s Note: Judge Nelson is the Supervising Judge of the Los Angeles Superior Court Family Law Division.

Do you associate In re Marriage of Elkins (2007), 41 Cal. 4th 1337 as having anything to do with experts? If you don’t, I want to suggest you should.

A decade ago Jeffrey Elkins represented himself in a dissolution trial. A local court rule and a trial scheduling order required that parties present their case and establish the admissibility of the exhibits they sought to introduce at trial by declaration. Mr. Elkins’ pretrial declaration failed to establish the evidentiary foundation for all but 2 of his 36 exhibits. The trial court excluded them and divided the marital property substantially as requested by Mr. Elkins’ spouse. Mr. Elkins took a writ, which was denied by the Court of Appeal. The Supreme Court granted Mr. Elkins’ petition.

In August 2007, the Supreme Court found that the local rule conflicted with existing statutory law and held that “although some informality and flexibility have been accepted in marital dissolution proceedings, such proceedings are governed by the same statutory rules of evidence and procedure that apply in other civil actions (with exceptions inapplicable to the present case).” Id. at 1354.

This holding takes on particular importance in the selection and designation of experts in family law cases. The California Evidence Code provides that an expert must be qualified by his or her “special knowledge, skill, experience, training, and education” to render the opinion he or she seeks to offer. It also provides the expert’s opinion must be based on matter “that is of a type that reasonably may be relied upon by an expert in forming an opinion ...” Cal. Evid. Code section 801. Further, Evidence Code section 802 provides: “A witness testifying in the form of an opinion may state ... the reasons for his opinion and the matter ... upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion. The court in its discretion may require that a witness before testifying in the form of an opinion be first examined concerning the matter upon which his opinion is based.”

Given these requirements counsel planning to designate an expert (or opposing the testimony of an expert) must determine at the outset whether the proposed expert has expertise in the subject matter on which expert testimony is to be presented. For example, in designating an expert on the value of a community business it may not be sufficient to show that the proposed expert is a certified public accountant who has testified in multiple family law trials. An accountant may be able to “do the math” under various valuation methodologies (for example, calculating book value, doing a comparable transaction analysis, or analyzing adjusted earnings before interest, tax, depreciation and amortization). But, does the proposed expert have the expertise to opine as to what constitutes a comparable company or which valuation method would likely be used by potential buyers?

This raises a related question: Is there a reasoned basis for the opinion? In the context of business valuation, for example, is the proposed expert familiar with the industry in question by reason of prior professional experience or interviews with others who are? In Marriage of Honer (2015) 236 Cal. App. 4th 687 the Court of Appeal noted that the trial court has discretion to accept one expert’s opinion over the other based on the reasons for his opinion, including his interviews with management of the business to understand its operations. Similarly, in Sargon Enterprises, Inc., v. University of Southern California, 55 Cal. 4th 747 (2012) the Supreme Court upheld a trial court’s determination to exclude an expert’s opinion of damages allegedly incurred as a result of breach of contract, noting that “the court may inquire into the expert's reasons for an opinion. [Rule 802] expressly permits the court to examine experts concerning the matter on which they base their opinion before admitting their testimony. The reasons for the experts' opinions are part of the matter on which they are based just as is the type of matter.” Id. at 771 (emphasis in original).

Assuming you have selected an expert and a qualified opinion has been prepared, the witness must also be timely and properly designated. Designation of experts is governed both by the Code of Civil Procedure and court order. If the parties stipulate to an ordered pre-trial discovery cutoff under Cal. Fam. Code section 2451 designation of experts ordinarily falls within that time constraint. Prudent counsel should make specific inquiry and agree in advance as to what expert cut-off dates are applicable to their case if there is a stipulated discovery cut-off. If no dates have been designated as a result of stipulation or other case management order, the time for designation of experts is governed by Code of Civil Procedure section 2034, et. seq.

Compliance with the disclosure requirements, including timely disclosure of both the substance of and the opinions which the expert will give at trial, is then required. This necessitates considered planning, as an expert who proposes to render a new and different opinion at trial other than the opinion expressed at deposition or in exhibits may be excluded. See Kennemur v. State of California (1982) 133 Cal. App. 3d 907; Dozier v. Shapiro (2011) 199 Cal. App. 4th 1509.

The obvious consequence if the expert is not qualified, the opinion is not reasonably based, or, the expert is not timely and appropriately designated, is that the evidence will be excluded or given little weight. A corollary and less obvious consequence may be that the time of counsel and the expert in formulating the opinion may be deemed unreasonable, and attorneys’ and expert fees denied on that basis.

The take-away: Counsel considering expert designation should do so carefully, timely, and bearing in mind the expert’s need to have a reasoned basis for the opinion. This is standard practice in civil cases. As Elkins held, family law is not an exception.


Breaking Up Is Hard To Do

Leena S. Hingnikar, CFLS5

Editor’s Note: Leena S. Hingnikar is a Certified Family Law Specialist and is an associate with Walzer Melcher, LLP in Woodland Hills, California. Leena is also a member of the Family Law Executive Committee for the Los Angeles County Bar Association.

Breaking up is hard to do, especially after the Supreme Court in Marriage of Davis held that the parties have to live in separate residences to be to be separated.” See In re Marriage of Davis, 61 Cal.4th 846 (2015). This decision has turned the family law world upside down. It has also galvanized many of the family law organizations, from the LACBA Family Section to ACFLS to the California Judges Association to take action.

Although the Court decided that parties have to live in separate residences to be separated, the Court seemed to muddy the waters by throwing in a “one-liner” Footnote 7 that said:

“Under the facts presented by this case, we have no occasion to consider, and expressly reserve the question, whether there could be circumstances that would support a finding that the spouses were ‘living separate and apart.’ i.e., that they had established separate residences with the requisite objectively evidenced intent, even though they continued to literally share one roof.”

This footnote sets the stage for a lot of litigation. If the Court had stuck with their main theme that parties have to live separate and apart in order to be separated, at least our clients would have some certainty. But this footnote seems to give discretion to the Court to determine each case on its facts. So the question remains . . . Is there a bright line rule or not?

The general consensus that the Court’s “clarification” of the law hurts everyone in some way, regardless of whether they are the rich, the middle, and low-income households. For the low income litigant, one party may not be able to afford to move out of the house. Debts run up by an irresponsible spouse may be considered community debts for a long period of time until one party is able to afford to move out of the residence. The wealthy litigant may face issues like feeling that they will jeopardize their custody rights or hurt the children by leaving the house during the early stages of their divorce. Every litigant will have to make the difficult choice of deciding which is more important - setting a date of separation or staying in the residence. In addition to the obvious difficulties litigants will face, the Court’s decision may have other unintended consequences, such as, if parents are participating in a “nesting” arrangement (where the parties keep the children in one home and the parties rotate in and out of that house). Would these parties be considered living separate and apart, and therefore, separated?

The issue the family law community has been grappling with is whether a new statute should be enacted that would give discretion back to the trial judges to determine the date of separation or whether to have a statute that would specify the factors that the trial court must consider when determining the date of separation. But doesn’t the footnote referenced above give the judges the same discretion they have always had to decide the date of separation on the facts of each case? The only thing that has been clear since the Davis decision—most of the family law community seems to agree that something has to be done to bring clarity to all this confusion.

To begin the process of trying to figure out what to do with the Court’s decision, there were three proposals put forward by ACFLS to a group of stakeholders, consisting organizations such as ACFLS, AAML, California Judges Association. Each proposal set forth revisions to particular Family Code sections which concern the date of separation. The stakeholders were asked for their comments on each of the proposals.

It appears that the easiest way to address everyone’s concerns is to go back to way to how things were, without any reference to parties needing to live in separate households to be separated. Although judges like a bright line rule, it doesn’t seem like all the stakeholders can agree on what the bright line rule should be. If we go back to the way that things were, judges can look to all the facts of the case to determine the date of separation and living in separate households will not have to impact their decisions. As of their last meeting, the stakeholders decided to (1) focus on revising “Version 3” of the proposals and (2) abrogating the Davis decision and also the decision in In re Marriage of Norviel, 102 Cal. App. 4th 1152 (2002). See Version 3 below:

Version 3:
Family Code Section 131: “Date of Separation” is the date that the spouses begin to live separately or apart by establishing both of the following mandatory contribution: (1) that either spouse express his or her intent to end the marriage to the other, and (2) objective evidence of conduct consistent with that spouse’s intent to end the marriage, considering the totality of the circumstances which indicate that a complete and final breakdown of the marriage has occurred. It is not required that the spouses live in separate households, although their physical separation is a factor to be considered in determining the date of separation.
Family Code Section 771: After the date of separation each spouse’s respective earnings and accumulations are their separate property.
The comments concerning this version are the following: 1. This version places the definition of “Date of Separation” in the definition section of the code and cleans up the “living separate and apart” or “living separately” sections. There are about 7 or so places in the Coe where these terms are used and this would provide uniformity.
General Comments: 1. Both Davis and Norviel would need to be addressed in the legislative comments to make it clear that the intention of this legislature is to abrogate them.

The only thing that is certain is that judges, lawyers, and other stakeholders are motivated to clarify the law in this area. Until then, we will need to advise our clients about the Davis decision and its ambiguities, which will impact each and every one of our clients, whether rich or poor.


Potential Changes to Mediation Confidentiality:
Why Family Lawyers Should be Concerned

Jeffery S. Jacobson, CFLS
Elizabeth Potter Scully, CFLS

Editor’s Note: Jeffery S. Jacobson, CFLS, is a partner at the firm of Jacobson Scully Shebby, LLP with offices in West Los Angeles and Hermosa Beach.

Elizabeth Potter Scully, CFLS, is a partner at the firm of Jacobson Scully Shebby, LLP. Ms. Scully is co-author (with Forrest S. Mosten) of The Complete Guide to Mediation: How to Effectively Represent Your Clients and Expand Your Family Law Practice (2nd Edition), published by the American Bar Association Family Law Section in 2015.

In 1998, California Evidence Code Sections 1115-1128 went into effect. These statutes defined mediation and applied broad rules of confidentiality to the mediation process. Evidence Code §1119 states in part: “No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any ... civil action.” This statutory scheme provided relative certainty for parties and counsel engaged in family law mediation that mediation communications would not be admissible in court.

On August 7, 2015 and October 8, 2015, the California Law Revision Commission (CLRC) voted to draft legislation to modify these mediation confidentiality statutes in order to create exceptions in the event that one of the parties makes a claim of attorney malpractice. This legislation would functionally reverse Cassell v. Superior Court (2011) 51 Cal.4th 113, in which the California Supreme Court refused to imply any exception to absolute mediation confidentiality, even for purposes such as an attorney malpractice claim which would arguably serve competing public policy interests. Cassell did not involve a family law dispute.

The recent CLRC vote represents a radical departure from the numerous appellate and California Supreme Court cases over the past 17 years in addition to Cassell which have upheld mediation confidentiality strictly and without exception. See e.g. Foxgate Homeowners’ Assoc. v. Bramalea California, Inc., (2001) 26 Cal. 4th 1. See also Eisendrath v. Superior Court (2003) 109 Cal. App. 4th 351. In Rojas v. L.A. Superior Court (Coffin) (2004) 33 Cal.4th 407, 15 Cal.Rptr.3d 643, 93 P.3d 260, the Court emphasized the importance of predictability and assurances to parties involved in mediation that communications within this process will remain confidential:

“One of the fundamental ways the Legislature has sought to encourage mediation is by enacting several ‘mediation confidentiality provisions.’ (Foxgate, supra, 26 Cal.4th at p. 14.) As we have explained, ‘confidentiality is essential to effective mediation’ because it ‘promote[s] 'a candid and informal exchange regarding events in the past . . . . This frank exchange is achieved only if participants know that what is said in the mediation will not be used to their detriment through later court proceedings and other adjudicatory processes’.”

The sacrosanct nature of mediation confidentiality is vital in family law, where spouses are often driven by emotional volatility and uncertainty. Many clients (e.g. those whose cases involve businesses with trade secrets or children with special medical or emotional needs, those fearful of identity theft, those from cultures in which familial privacy is highly valued, and many others) may elect mediation over litigation precisely because of the confidentiality it offers. Family lawyers, mediators, and most importantly clients need predictability with regard to the boundaries of mediation confidentiality. Any exceptions to the strictly confidential nature of this process will have major repercussions in the area of family law. For example, if representations by one party’s attorney which give rise to a malpractice claim were made during a joint session, full understanding of the context for those representations might require divulging statements made by the other party and counsel and by the mediator. Opening the door to evidence of some mediation communications would necessarily blur the lines of demarcation between confidential and non-confidential communications which are so satisfyingly clear under the current statutory scheme.

While there is no doubt a place for family law litigation, it does not fit the needs of many families. Mediation provides parties with a process that is centered around them and conducive to the long-term relationships that former spouses (especially those who co-parent) need to have with one another on into the future after their divorce. Unlike other kinds of civil actions, which focus on allocation of responsibility for past conduct, family law matters involve ongoing relationships between the parties and ongoing jurisdiction on issues ranging from child custody and support to long-term spousal support. Simply put, family law matters often do not involve “one and done” determinations, and parties -- particularly those with children -- most continue long-term relationships with one another.

Also unlike other civil matters, in which the parties generally do not owe one another fiduciary duties, in family law cases the parties must exchange Declarations of Disclosure which are designed to ensure a sufficient baseline of financial knowledge before parties can settle a case. The Court also has ongoing jurisdiction to address undisclosed assets through Family Code §2556. The recent case of Lappe v. Superior Court (2014) 232 Cal.App.4th 774 clarified that Declarations of Disclosure, which must be exchanged in all cases and are therefore not prepared “for the purpose of, in the course of, or pursuant to” mediation, fall outside mediation confidentiality protection and are admissible in subsequent litigation (for example, a motion to set aside a mediated agreement based on fraud or breach of fiduciary duty.) In other words, mediation confidentiality in no way precludes a party from conducting discovery about Declarations of Disclosure or offering them into evidence in post-judgment set-aside litigation.

It is uncertain what direction the CLRC will go with regard to exceptions to mediation confidentiality; however, any exceptions to mediation confidentiality will impact our work. Because of the unique nature of family law, members of the family law bar must weigh in on any changes to mediation confidentiality. Written comments may be sent to the CLRS’s Chief Deputy Counsel Barbara Gaal (bgaal@clrc.ca.gov). In addition, the CLRC is holding its next public meeting on December 10, 2015 in Los Angeles.


 
Collaborative Divorces Gain Momentum

Joseph P. Spirito, Jr.

Editor's Note: Joe Spirito, Esq is a founding partner of McGaughey & Spirito located in Redondo Beach, California. Joe specializes in family law and is a practitioner and instructor of collaborative divorces. He is also the current Secretary for the Los Angeles County Bar Association's Family Law Executive Committee.

Getting a divorce is among the most challenging and trying times of a person's life. Divorcing couples can spend thousands of dollars and give up many years of their lives to the traditional divorce process.

By the end, the parties come out of the other side drained and bound to decisions made by a third party judicial officer.

It doesn't have to be this way.

Couples looking to avoid such a public and adversarial process are increasingly utilizing collaborative divorce, which allows couples to settle the terms of their divorce confidentially and entirely out-of-court. The end result is that the parties can sign a settlement agreement with terms they actually created rather than terms determined by a judge.

Collaborative divorce is typically much less money than a contested divorce and unsurprisingly, it's rapidly gaining momentum across the country as the preferred alternative to the traditional divorce process.

Many states, including California, have now enacted laws formally enabling and facilitating collaborative divorces.

Unlike in litigation, spouses typically utilize joint professionals, such as financial experts, child psychologists, custody evaluators and therapists. The goal of the involved parties and professionals is a cooperative resolution in the best interests of the family's future.

So how does it work? Each party retains a collaborative attorney. The couple and their attorneys then sign an agreement that they will not litigate and will reach a fair settlement directly.

However, at any point, either party can opt out, retain new counsel and pursue litigation.

But if the spouses do continue with the collaborative process, they must agree to communicate openly and work with one another and their attorneys to facilitate the process. All involved parties work together as a team, emphasizing cooperation and respect over animosity and confrontation.

Though this process may sound like mediation, it is not. In mediation, parties submit to a single, neutral third party. The mediator then works toward a mutually agreeable decision. However, a power imbalance between the parties often exists and yet they proceed without counsel.

In a collaborative divorce, spouses craft a settlement agreement with the benefit of their own legal advocate to help them.

Herein lies the beauty of a collaborative divorce: The spouses control their own destiny. The parties can come up with creative settlement terms and custody arrangements tailored toward their own unique circumstances that a judge or mediator may not otherwise make. So in many cases, this means a quicker and less expensive divorce with terms that are likely to be successful in the longer run because the parties invested time and effort into creating them.

This article first appeared in the Palos Verdes Peninsula News on September 17, 2015.


To Appear or Not To Appear, That Is the Question: Trial Courts Cannot Grant Excessive Relief
In re Marriage of Siegel, A140559 (August 21, 2015)

Stephen L. Cawelti

Editor's Note: Stephen L. Cawelti, CFLS, specializes in the practice of Family Law and is with Thomas L. Simpson's firm in Glendale, California. He is also a member of the Family Law Executive Committee for the Los Angeles County Bar Association and the LACBA Family Law E-News Sub-Committee.

Irwin and Linda Siegel were married in 1957 and divorced in June of 1987, with a stipulated Marital Termination Agreement that was incorporated into a Further Judgment on Reserved Issues, entered on December 2, 1987. Said Further Judgment called for Irwin to pay Linda $2,200 per month in spousal support until Linda's death or remarriage.

The judgment also set forth provisions for spousal support payments to Linda should Irwin predecease her. Irwin was to establish an insurance trust and designate the trust as the beneficiary of Irwin's life insurance in an amount of no less than $250,000 so long as said insurance was available to Irwin at a "reasonable cost". Income from the trust would pay to Linda up to $2,200 per month, with the principal invaded if necessary to make the payments. Upon Linda's death, the remaining corpus of the trust would be disbursed according to Irwin's will. These provisions were strictly nonmodifiable according to the provisions of the judgment, with the parties acknowledging that they understood the potential impact of a nonmodifiable support order.

26 years later...

Linda filed a Request for Order in August of 2013, requesting that the court "insist on that proof" of Irwin's insurance trust as ordered in the judgment. Of note is the finding that Linda used the required judicial council form FL-300 and checked all of the appropriate and correct boxes, putting Irwin on adequate notice of what Linda was asking the court to do during the hearing schedule for October 9, 2013. The Request for Order contained an order setting the hearing date, in which a judicial officer signed off in ordering, "You [Irwin] are ordered to appear in court at the date and time listed in item 2 to give any legal reason why the orders requested should not be granted." The form order also contained a statement in bold type that the recipient could file and serve a Responsive Declaration if he/she wished to respond to the Request for Order.

Notice was confirmed as Irwin filed a Responsive Declaration on September 24, 2013, on the correct Judicial Council form. He checked all the correct boxes, and consented to "an order that petitioner disclose information about his existing life insurance for respondent." Irwin also properly attached several documents purporting to prove that he had life insurance benefits of $123,084 and that said benefits would be held in a trust to provide Linda with up to $2,200 per month until her death or exhaustion of the trust funds. Irwin also provided documents that in 2012 he had told Linda in writing that he, then age 79, was no longer insurable at reasonable cost, along with other information about the limitations of the policy including documentary proof of said policy limitations.

Irwin did not appear at the hearing, and Linda represented herself. Alameda County Judge Tara M. Flanagan acknowledged the orders Linda was requesting and gave her an option of requesting alternative relief, asking whether her issue was primarily disclosure or compliance. Linda stated that it was her belief that Irwin could "well afford" to establish a new insurance policy, even if that cost tens of thousands of dollars, considering her knowledge of his income, retirement and property.

The court expressed some reluctance to find a remedy for the "missing $127,000" but noted that Irwin had chosen not to appear, and that it would take the matter under submission and provide a ruling, "in full, in writing, within the next 10 days." The court further found that its order would certainly include an order that Irwin provide a true copy of the insurance policy and contact information for the plan administrator.

28 days later, the court did issue written findings and orders. First off, it construed Linda's Request for Order to be a request to enforce the judgment. It went on to find that Irwin had not provided information to Linda that would show the policy and trust actually existed, and therefore found that he had failed to abide by the terms of the judgment and granted Linda's Request for Orders.

The court then went on to make the additional orders that Irwin establish a separate trust in the amount of $127,000 to make the $2,200 payments to Linda, to commence if there should be any delay in support payments in the event of Irwin's death, or exhaustion of the existing life insurance trust. Irwin appealed.

The First District Appellate Court reviewed Irwin's claim de novo because he raised a question of law on undisputed facts. A footnote advised that the result would have been the same even under an abuse of discretion standard.

Basic due process considerations require that a litigant must be given a reasonable opportunity to respond to evidence or argument that is "new, surprising, and relevant." A trial court can grant a continuance for this purpose, or grant other relief in order to provide such opportunity to the otherwise disadvantaged litigant. But here, the trial court itself converted Linda's request into something else entirely and granted relief far in excess of that which was requested. Though Linda argued to the appellate court that Irwin knew she was asking for more than just paperwork in that she was seeking compliance with the agreement he had signed, the court found that Linda could have asked for such relief but had failed to do so. As such, Irwin had no way of knowing that the family court would modify the Agreement and add terms that were not in it at the time he signed it.

In his argument, Irwin cites to Code of Civil Procedure §580, which precludes relief in excess of that requested in a civil complaint against a defaulting party. This is a guarantee that they have notice of the maximum judgment that could be issued against them, and the defaulting party can decide whether it is worth contesting and exposing herself/himself to greater liability. The hypothetical defendant has a right to decide not to appear and defend, but such a decision cannot be intelligently made without notice of the relief being requested.

This is actually an efficiency built into the system and courts should not look down on a litigant who decides not to appear. Rather, a minimum of public resources will be spent on a case where a request for relief is uncontested. This cost-benefit analysis by a defendant should not be punished with excessive relief, whether imposed by the trial court or "shoe horned" in by the complainant.

Of importance to the appellate court was the fact that Linda requested specific relief, not more broad relief related to property rights, or even to enforce the judgment to its fullest extent, which might have put Irwin on notice that almost anything within reason could be ordered. As such, Irwin stipulated to the actual relief being requested and elected not to appear and defend himself. Anything more was beyond the authority of the court.

Some practical take-aways: Check the boxes! Oftentimes as practitioners we see failures to check all appropriate boxes on preprinted forms and this is sometimes treated as "no big deal" by trial courts. Especially if you are retained late by a respondent, don't be afraid to ask for a continuance if there is a technical noncompliance with mandatory forms. Just because you as an attorney may see the potential remedies the court could give does not mean your new client did.

Also, think about attending the hearing even if your client agrees to the relief being requested. Don't rely on the moving party and the court to stick to the rules. Far better to prevent a problem than to fix it at the appellate level. If the specific relief requested is acceptable to your client, agree. It some cases, it may even be worth foregoing a written response. Money saved on response papers could be well-spent on a simple appearance to verify that no more excessive relief is ordered.

Most importantly, don't passively allow the court to stray from the relief being requested. Making a record that the orders being contemplated are in excess of those requested may cause the judicial officer pause to reconsider and act to protect your client.


ROI For Family Lawyers

Peter M. Walzer

Editor's Note: Peter is a Certified Family Law Specialist and a partner in the firm Walzer & Melcher specializing in family law. He is the Immediate Past Chair of the Los Angeles County Bar Association Family Law Executive Committee.

ROI is the acronym for "return on investment". In the context of legal marketing it measures the results obtained by your marketing efforts.. Are you spending all your time marketing and too little time engaged in the practice of law? Or is the opposite true? Are your lunches at networking groups and your evenings at Bar Association meetings bearing fruit? Target your marketing efforts at those that produce referrals by measuring your marketing efforts. With some simple data capture, you can determine how your marketing efforts are working for you. Measuring your marketing success will provide you with a tool that will assist you in using your marketing dollars and time most efficiently.

There are two types of analysis that will help you with your planning. First, you need to compare each marketing activity and find out which is the most productive. After all, there are only so many hours in the day. Second, for each marketing activity that produces income, what is the return on your investment? This analysis is critical. If you find that two marketing activities generate equal shares of your income, you should find out which activity takes more time and money and therefore is less productive. It is possible that one marketing activity may cost next to nothing, yet generate as much revenue as another activity that costs hundreds of dollars.

To compare the revenue produced by each marketing activity, start by listing gross income for each client over the duration of their matter. Determine who referred the client to you and which marketing activity generated that referral. For example, in the accompanying chart, we listed bar association activities, articles published, website, golf and attorney contacts as referral sources. One way to analyze the data is to input it in a spreadsheet with your clients listed on the left column and the referral sources listed across the top row. Enter the gross income earned from each client under the referral source that was responsible for that client, and subtotal the gross income for each referral source column. You or your bookkeeper should be able to generate this data from Quick Books or a similar program that generates a report entitled "Transaction Detail by Account" with each client being entered as an account.

To calculate the percentage of the client revenue you obtain from each referral source, divide the subtotaled gross income generated by the referral by the amount of your total gross income for the year. The resulting number is the percentage of your total income generated by each referral.

In the cases where two or more referral sources are associated with generating a client (which is common), at first keep the analysis simple and try to attribute only one primary referral source to each client. For example, your referral source may be a member of a bar association who receives your newsletter. Did your bar association affiliation result in the referral, or did your newsletter? If both contributed, and you want to do a more detailed analysis, you could split the revenue between the two sources.

If you are using a spreadsheet, you can easily create a pie chart that will visually represent the distribution of income by referral source. With this picture, you will be able to see where your clients are coming from and analyze the productivity of your various marketing activities. You will see that some activities are more effective than others and other activities generate almost no referrals.

The next step in this analysis is to analyze how effectively each different marketing effort is in generating business. This analysis is called Return on Investment or ROI. To quantify your marketing activities you need to translate the amount of time you spend on an activity into a dollar amount. We estimated the amount of time spent for each marketing activity and assigned a dollar value to each hour spent away from billable work at the office. One way to determine the dollar value per hour is to calculate the attorney's gross income for the year, divide by 260 (approximate number of working days in each year) to get an hourly rate, and then assign that rate to each marketing activity.

As an example, if you want to calculate whether an article you wrote was an effective marketing tool, estimate the amount of time it took you to write the article and multiply the time by your hourly rate. We roughly estimated $150 per hour to be the value of attorney time in determining how much an activity cost which represented income less overhead. You may want to use your billing rate, but whatever you do, do it consistently for every referral so you are comparing like numbers. Add in any out-of-pocket expenses incurred for each activity to the value you put on your time to get a total cost for that activity. In the case where you are analyzing the benefits of your bar association referrals, you may include time you spent away from the office at a bar conference, the cost of the hotel, and any other extra costs of that trip.

If an article took 40 hours to write with no out of pocket costs, the total dollar cost would be $150 multiplied by 40 hours or $6,000. If the total revenue generated from writing your article was $100,000, your ROI would be calculated by dividing $100,000 by $6,000. In this example, the article generated sixteen times the cost of the referral. This is a good return on your investment.

The weakness of this method is that the intangible benefits of certain activities may be overlooked in this analysis. There may be benefits that do not show up in the ROI. Some of your activities will reinforce your efforts in other areas. For example, public speaking can be labor intensive when you count in all the preparation time. You may not be able to link that activity to a specific client referral. On the other hand, you may still choose to continue that activity because your overall reputation in the community is enhanced and the public speaking may produce indirect firm leads.

This exercise in analyzing your marketing efforts will help you to determine which activity generates referrals and clients, and which activity is not effective. And, if your time and marketing budget is limited, you need to know which activity generates the most revenue. Armed with this information, you will be able to make more informed decisions on how to spend your marketing dollars wisely.

Peter M. Walzer is a vice-president of the Academy of Matrimonial Lawyers. When he isn't practicing law, you will find him playing golf or photographing with his children. Follow him on Instagram at pmichaelw. He practices law in Los Angeles and Ventura counties. His website is walzermelcher.com.

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The Tax Deductibility of Attorneys' Fees in a Marital Dissolution

Terry M. Hargrave, CPA/ABV, CFE and Peter M. Walzer, CFLS

Editor’s Note: Ms. Hargrave is a partner in the accounting firm of Hargrave and Hargrave in Los Angeles, California. She has more than 20 years of experience as an expert on family law accounting issues such as cash flow available for support and business valuations.

Peter Walzer is a Certified Family Law Specialist and a partner in the firm Walzer & Melcher specializing in family law. He is the Immediate Past Chair of the Los Angeles County Bar Association Family Law Executive Committee.

At the first interview with a client, the family law attorney must start looking for tax issues in the case. One area that is often overlooked is the tax deductibility of attorneys’ fees in a divorce. By maintaining careful records and being aware of the circumstances when attorney’s fees are tax deductible, you can save your clients thousands of dollars.

The general rule is that the fees paid to attorneys, accountants, appraisers, and other experts in connection with divorce, child custody, and paternity matters are not tax deductible. However, there are instances where professional fees are deductible. There are three Internal Revenue Code sections addressing the deductibility of fees. Internal Revenue Code § 162 provides that those business expenses that are ordinary and necessary in the conduct of business are deductible; Internal Revenue Code § 212 which allows taxpayers to deduct expenses that are incurred to produce taxable income; and Internal Revenue Code § 263 which allows the taxpayer to capitalize certain expenses to increase the basis of an asset.

Occasionally a client will attempt to reduce taxes by paying their legal fees incurred for their marital dissolution through their business. Divorce-related attorneys' fees are not a business expense and therefore are not deductible by the business. Attorneys' fees incurred in connection with a divorce are personal expenses, even though the litigation may have important business implications. For example, if fees are expended for the purpose of protecting a family business, they are still considered personal (Melat v. Commissioner, TC Memo. 1993-247). Husband cannot deduct cost of disputing the value of his share of unpaid law firm contingency fees. It may be appropriate, however, to deduct fees related to the corporation’s response to being joined in the divorce action when one spouse is contending that the income from the corporation is his/hers.

In Liberty Vending and John Poulos v. Commissioner, T.C. Memo 1998-177, Husband was the sole shareholder of a C-corporation and an S-corporation that together operated a video game arcade. Husband suffered a heart attack and was hospitalized for 2-3l days. While he was in the hospital, wife filed for divorce, obtained a restraining order, and filed an ex-parte order of protection. These actions gave her emergency possession of the two corporations and put the corporate bank accounts in escrow under the supervision of the family courts. Then, wife and boyfriend fired all the employees, took large amounts of cash and equipment, and removed the corporate records from the corporations’ place of business. Husband incurred legal fees to regain control of the corporations and litigate his divorce. The Court ruled that husband’s legal fees were deductible, “if the origin of the claim arose from their profit seeking, rather than Mr. Poulos’ personal activities. See United States v. Gilmore [63-1 USTC ¶9285], 372 U.S. 39, 48 (1963). Mr. Poulos’ legal fees were incurred for the purpose of establishing his right to possession of, or participation in the income from, the corporations, and therefore, such expenses arose from Mr. Poulos’ profit seeking activities. See, e.g. Hahn v. Commissioner [Dec. 33,765 (M)].”

Legal fees, arising from a divorce of the shareholder of a corporation are deductible only to the extent that such fees were incurred to resist actions that interfered with the business activities of the corporation. In Dolese v. United States [79-2 USTC ¶9540], 605 F.2d 1146, 1152 (10thCir. 1979)) for example, Husband’s corporations were restricted by the Court from taking certain actions. The business valuation, however useful to the corporation for several reasons, had its “origin” in the divorce action, and was therefore a personal expense. The test of deductibility for legal fees is the “origin and character of the claim.”

Attorneys’ fees incurred in connection with a marital dissolution are deductible as miscellaneous itemized deductions on a person’s individual tax return in a few circumstances. They are deductible only to the extent they exceed 2% of the taxpayer's adjusted gross income and they are subject to a phase-out when the adjusted gross income exceeds a certain amount. For the 2001 tax year, itemized deductions begin to be phased out at $132,950 of adjusted gross income for single and head of household taxpayers. Legal fee deductions are also subject to the alternate minimum tax. Thus, the deduction may be lost if it is significant in comparison to the other amounts on the tax return. In order to take advantage of the 2% rule, it is best if all deductible legal fees are paid in one year—although that may trigger the alternative minimum tax.

Attorneys’ fees and other litigation costs paid by the taxpayer in the tax year are deductible to the extent that they are incurred:

1. For the production or collection of income;

2. For the management, conservation, or maintenance of property held for the   production of income;

3. In connection with the determination, collection, or refund of any tax, or

4. In connection with getting and collecting alimony (spousal support).

Because spousal support is includable in gross income, the fees incurred in obtaining the spousal support or in collecting delinquent spousal support are deductible (IRC §§ 212(1); Regs. §§ 1.262-1(b)(7); Wild v. Commissioner, 42 TC 706 (1964)). Accountants’ appraisers’, actuary, or vocational counselors’ fees are tax deductible to the extent their work involves obtaining spousal support.

Fees and costs in connection with spousal support modification proceedings are also tax deductible. Attorneys’ fees incurred for the purpose of obtaining an interest in a retirement plan are also deductible, to the extent that retirement income is includable in gross income. The fees of the actuary used to value your client's interest in the plan and the costs of preparing the QDRO may also be tax deductible. The fees incurred in obtaining the client's interest in royalties, residuals, and other income taxable to the client will also be tax deductible.

Fees are also deductible to the extent they are paid for tax planning advice or services (IRC § 212(3); Carpenter v. United States, 338 F.2d 366 (Ct.Cl.1964); Rev. Rul. 72-545, 1972-2 CB 179). The following advice and services may be allocated to tax planning:

  1. Costs of structuring a property division to produce desired tax effects, i.e., advice re: rollover residence, the one-time tax exclusion of capital gain for taxpayers 55 and over, etc.
  2. Costs of determining the adjusted basis of assets in the property settlement.
  3. Costs of planning an alimony trust or annuity agreement to avoid some of the restrictions on deductible spousal support.
  4. Costs of estate planning that assure proper estate and gift tax consequences for the payment or receipt of support or property division.
  5. Costs of preparing a settlement agreement to assure deductible support payments during the separation period.
  6. Costs of maximizing the deductible portion of spousal support or of minimizing the taxable portion of spousal support.
  7. Costs of allocating dependency exemptions.
  8. Costs of obtaining advice regarding the tax consequences of divorce or separation instrument or of gathering information for and preparation of tax returns.
  9. Costs of drafting a QDRO and submitting it to the plan administrator for approval and enforcing the QDRO. (These may also be deductible as fees incurred to produce taxable income.)

Fees incurred in establishing or defending title to property may be capitalized and added to the basis of property (Serianni v. Commissioner, 80 TC 1090, 1103 (1983), affirmed on appeal without discussion on this issue, 765 F.2d 1051 (11 Cir. 1985); Gilmore v. United States, 245 F. Supp. 383, 386 (ND CA 1965)). Even though the fees incurred for this purpose are not currently deductible, they will result in a tax benefit when the asset is sold sometime in the future. Such fees could include the cost of a business valuation, real property valuation issues, cost of preparing and filing a deed to put the house in your name, and the tracing of separate property.

An effective way to address the deductibility of attorneys’ fees is by itemizing separately on each bill the services that involve tax advice and the "production or collection of income.” Set up your time-keeping method to track time spent on these services. You may wish to state in your fee agreement, if the IRS causes you to substantiate your allocations, you will be paid your normal hourly rates for this work. At the end of the year, the bills can be reviewed and summarized in a letter to clients explaining that a portion of their attorneys’ fees may be deductible. If you are qualified to provide this advice, send the client a letter at the conclusion of the case that expressly identifies the deductible vs. non deductible services rendered. Confirm with your malpractice carrier that you are covered if your client relies of your tax advice. In the event the client's deductions are disputed, the IRS must receive such an allocation letter in evidence (Goldaper v. Commissioner, TC Memo. 1977-34). If you are not qualified to render tax advice, you should consult with an accountant to determine which services billed during the tax year are deductible, which expense can be capitalized and which services are non-deductible. The accountant could then summarize their determination in a letter.

Through tax planning, parties can use the tax deductibility of attorneys’ fees to allocate fees between the spouses. If, for example, Husband pays to Wife $10,000 for her attorney's fees as temporary spousal support and Wife pays her attorney's fees in that same year, Wife may be able to deduct a significant portion of her attorney's fees. That transaction can benefit both parties. Husband pays Wife's attorney's fees by making them tax deductible as spousal support and gives Wife the partial tax deduction for attorney's fees when incurred for production of income or for tax advice.

Tax law impinges on almost every aspect of a family law case. By paying attention to the tax deductibility of your fees, you will reduce your client's obligations, and perhaps even give them an incentive to pay your bill.


New and Pending Legislation of Interest

Eve Lopez and Charles Wake

Editor’s Note: Charles Wake is a Family Law practitioner in Culver City, California.  He co-chairs the Legislative Committee of the LACBA Family Law Executive Committee and is Vice-Chair of the Family Law E-News Committee.

Eve Lopez is a Certified Family Law Specialist and is a partner in the Law Firm of Lopez & Grager located in Los Angeles, California. She is also on the Legislation/Amicus Committee for the Los Angeles County Bar Association’s Family Law Executive Committee.

The California Legislature is nearing the end of its 2015-2016 session which began on January 2, 2014. A number of new laws went into effect on January 1, 2015. Several more will go into effect January 1, 2015, or in some cases later.  Some changes of note are:

Non-Probate Transfers (the "revocable TOD deed"): AB 139 created a new type of deed: the revocable transfer on death deed, or "revocable TOD deed."  A revocable TOD deed would be recorded and would transfer real property upon the death of the transferor without a probate proceeding. It would not, however, affect the owner's interest in the property during his or her lifetime. AB 139 also created standards for the validity of a revocable TOD deed, established a simple form of revocable TOD deed, and established a mechanism to contest the transfer. Finally, AB 139 establishes the priority of creditors' claims against the transferor and beneficiary as well as limiting a beneficiary's liability in connection with any transferred property. AB 139 provides a useful new tool for probate avoidance where assets are limited or a party does not wish to incur the expense of full estate planning.

Dependency:

Minor's right to be heard (juvenile dependency hearings): Welfare and Institutions Code §349 ("Section 349") has long given a minor the right to address the court at any dependency hearing. However, minors have not always been aware of that right. AB 217 amended Section 349(c) to specifically require that the court inform the minor of his or her right to address the court.

Children of dependent parents: AB 260 significantly limited the juvenile court's ability to find that the child of a dependent parent should also be subject to the court's dependency jurisdiction. First, AB 260 added section 361.8 to the Welfare and Institutions Code ("Section 361.8"). Section 361.8 prevents a child of a dependant parent from being declared a dependent "solely on the basis of information concerning the parent’s or parents’ placement history, past behaviors, or health or mental health diagnoses occurring prior to the pregnancy, although that information may be taken into account when considering whether other factors exist that place the child at risk of abuse or neglect." Second, AB 260 added section 825.5 to the Welfare and Institutions Code ("Section 825.5") Section 825.5 provides that information in the dependent parent's file may be disclosed to the county in the child's dependency case, but such information" shall only be admitted as evidence in the child’s dependency proceedings pursuant to a court order finding that the information is materially relevant to the case, subject to the provisions of subdivision (a) of Section 361.8."

Property Division: Putative Spouses: AB 380 amended Cal. Fam. Code §2251 ("Section 2251") which empowers the court to divide quasi-marital property acquired by putative spouses during their union. Previously, if the court found that "either party or both parties believed in good faith that the marriage was valid," Section 2251 required the court to divide quasi-marital property as if it were community property.  AB 380 has now amended Section 2251 to require such a division "only upon request of a party who is declared a putative spouse."

Domestic Violence: Mutual Restraining Orders: Cal. Fam. Code §6305 ("Section 6305") previously authorized mutual domestic violence restraining orders of both parties presented written evidence of domestic violence and the court found that both were primary aggressors. AB 536 has amended Section 6305 to provide that written evidence of domestic violence in a responsive declaration is not sufficient. Both parties must now present written evidence of domestic violence "in an application for relief using a mandatory Judicial Council restraining order application form."

Preliminary Declarations of Disclosure: Default Judgments: Previously, a petitioner was required to serve a preliminary declaration of disclosure prior to entry of a default judgment even when the respondent's whereabouts were unknown and service was made by publication. SB 340 has amended Cal. Fam. Code §2110 to exempt a petitioner from serving a preliminary declaration of disclosure if "petitioner served the summons and petition by publication . . . pursuant to court order and the respondent has defaulted."

This is not a comprehensive review of all newly chaptered bills amending statutes relating to family law matters. Readers can find a comprehensive matrix of bills tracked by the California State Bar's family law section on the State Bar website.

 
 
 
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Recent Case Summaries
 
 
Family Law
Posted: Friday, December 4, 2015
Indian tribe has sole authority to determine its own membership. In determining whether a dependent child is an Indian child for purposes of the Indian Child Welfare Act and related state statutes, the juvenile court must defer to the membership decisions of an Indian tribe. Juvenile court correctly ruled that dependent minors were not Indian children where the tribe of which they were allegedly members disenrolled them, and did not err in terminating parental rights without applying ICWA's heightened substantive and procedural protections.
     In re K.P.
     filed November 20, 2015, publication ordered December 4, 2015, Fourth
     District, Div. One
     Cite as 2015 S.O.S. 5811
     Full text click here
 
Family Law
Posted: Thursday, December 3, 2015
Juvenile court may deny reunification services to a parent who has had reunification services denied or parental rights terminated with respect to a sibling or half-sibling of the subject dependent child, even if the order in the prior case is on appeal.
     In re T.G.
     filed December 2, 2015, First District, Div. Four
     Cite as 2015 S.O.S. 5789
     Full text click here
 
Family Law
Posted: Tuesday, December 1, 2015
Where real property owned by a support obligor was foreclosed upon and transferred by trustee’s deed, trial court correctly interpreted the applicable statutes as fixing the amount of the support judgment lien as of the time of the trust deed rather than as of the time of the transfer to the new owners. Obligation under a marital dissolution judgment to maintain life insurance for ex-spouse’s benefit was neither a money judgment nor a spousal support judgment on which a judgment lien could be created.
     Guess v. Bernhardson
     filed August 21, 2015, publication ordered November 10, 2015, Fourth District, Div. One
     Cite as 2015 S.O.S. 5724
     Full text click here
 
Family Law
Posted: Wednesday, November 25, 2015
Juvenile court may, under Welfare and Institutions Code Sec. 361.5(b)(11), deny reunification services to a mother or father whose parental rights to another child had been permanently severed, including one whose parental rights were severed in another state.
     D.F. v. Superior Court (Humboldt County Department of Health and Human
     Services)

     filed November 24, 2015, First District, Div. One
     Cite as 2015 S.O.S. 5637
     Full text click here
 
Family Law
Posted: Tuesday, November 24, 2015
Juvenile court erred by removing sons from mother’s custody under Welfare & Institutions Code Sec. 361(c), where boys were not in her physical custody at the time petition was filed and had not been in her custody for several years prior.
     In re Dakota J.
     filed November 23, 2015, Second District, Div. Three
     Cite as 2015 S.O.S. 5595
     Full text click here
 
Family Law
Posted: Tuesday, November 24, 2015
Juvenile court judge erred in sustaining allegation of "serious physical harm," based on judge’s categorical view that "hitting children with shoes" is "physical abuse" and "not a proper form of discipline." Court erred by failing to determine whether mother’s conduct--which consisted of spanking children with a sandal on rare occasions when other methods of discipline failed--fell outside the right of parents, which exists elsewhere in California civil and criminal law, to discipline their children as long as the discipline is genuinely disciplinary, is warranted by the circumstances, and is reasonable (rather than excessive) in severity.
     In re D.M.
     filed November 24, 2015, Second District, Div. Two
     Cite as 2015 S.O.S. 5600
     Full text click here
 
Family Law
Posted: Monday, November 23, 2015
Trial court, in making attorney fee award, was not required to differentiate between cost-shifting and sanctions statutes where its order indicated that the amounts awarded would be appropriate in their entirety under either statute. In determining fee award under Family Code Sec. 2030, trial court did not abuse its discretion by considering funds paid to wife’s attorneys on her behalf by her father in analyzing the relative circumstances of the respective parties.
     In re Marriage of Smith
     filed November 20, 2015, Fourth District, Div. Two
     Cite as 2015 S.O.S. 5587
     Full text click here
 
Family Law
Posted: Friday, November 20, 2015
Social services agency’s lack of inquiry regarding child’s American Indian heritage, as required by the Indian Child Welfare Act, could not be remedied by revisiting termination order while the matter was being reviewed on appeal. Because juvenile court acted in excess of its jurisdiction in doing so, court of appeal was required to remand so that proper notice could be given, with termination order to be reinstated if no tribe indicated child was an Indian child within the meaning of the statutes.
     In re K.M.
     filed November 20, 2015, Fourth District, Div. Three
     Cite as 2015 S.O.S. 5524
     Full text click here
 
Family Law
Posted: Friday, November 13, 2015
Juvenile court’s finding that mentally ill mother of dependent child was provided with reasonable reunification services was unsupported by substantial evidence where social services agency knew of mother’s inability to obtain medication from its referred clinic, but failed to provide another referral for a medication evaluation or take any other steps to help her obtain medication.
     In re A.O.
     filed October 14, 2015, publication ordered November 12, 2015, Fourth District,
     Div. Two
     Cite as 2015 S.O.S. 5414
     Full text click here
 
Family Law
Posted: Tuesday, November 10, 2015
If property is acquired during marriage with both separate and community funds, the transmutation requirements of Family Code Sec. 852 must be satisfied before the reimbursement provisions of Sec. 2640 apply. Where there was no express transmutation of husband’s separate property, his property contributions remained separate property. He held a separate property interest in the property proportionate to the separate property funds that he contributed.
     In re Marriage of Bonvino
     filed November 10, 2015, Second District, Div. Five
     Cite as 2015 S.O.S. 5342
     Full text click here

Family Law
Posted: Tuesday, November 10, 2015
Claim of Native American ancestry by child’s great-uncle was sufficient to require that the relevant tribes be notified under the Indian Child Welfare Act and related state law. Grandmother’s claim that she had seen photographs of her maternal grandmother that suggested Native American ancestry was sufficient to require that the relevant tribe be notified. Where there was substantial evidence supporting exercise of dependency jurisdiction, but ICWA was not complied with, jurisdictional order could only be conditionally affirmed, subject to ICWA compliance on remand.
     In re Kadence P.
     filed November 9, 2015, Second District, Div. Seven
     Cite as 2015 S.O.S. 5323
     Full text click here
 
Family Law
Posted: Tuesday, November 10, 2015
Juvenile court did not err in giving full faith and credit to an order of "tribal customary adoption." There is no requirement under California law that a tribal court exercise jurisdiction in accord with the Indian Child Welfare Act in order for the juvenile court to honor the tribe’s decision with respect to the placement of an Indian child.
     In re Sadie S.
     filed October 5, 2015, publication ordered November 4, 2015, Fifth District
     Cite as 2015 S.O.S. 5304
     Full text click here
 
Family Law
Posted: Tuesday, November 3, 2015
Court erred in ordering support for adult child under Family Code Sec. 3910 on the basis of his being disabled and likely to require accommodations in the workplace, where the only evidence regarding employability suggested that he would be able to get and keep a job.
     In re Marriage of Cecilia and David W.
     filed November 3, 2015, Fourth District, Div. One
     Cite as 2015 S.O.S. 5274
     Full text click here
 
Family Law
Posted: Monday, November 2, 2015
Substantial evidence regarding mother’s physical disabilities and domestic violence perpetuated on her by father, and her resulting inability to care for child who had significant medical needs, supported exercise of dependency court jurisdiction. A substantial risk of harm to a child as a result of the inability of a parent to adequately supervise or protect that child is a basis for such jurisdiction without regard to any willful or negligent conduct of a parent.
     In re Tyler R.
     filed November 2, 2015, Second District, Div. Seven
     Cite as 2015 S.O.S. 5248
     Full text click here
 
Family Law
Posted: Friday, October 30, 2015
Where social services agency recommends termination of dependency jurisdiction and the dependent child or children oppose the recommendation, the parties opposing termination of dependency jurisdiction have the burden of establishing by a preponderance of the evidence that conditions justifying initial assumption of dependency jurisdiction either still exist or are likely to exist if supervision is withdrawn. If juvenile court rules that the burden has not been met, appellants must prove that the evidence compels a ruling in their favor in order to prevail.
     In re Aurora P.
     filed October 29, 2015, First District, Div. Five
     Cite as 2015 S.O.S. 5225
     Full text click here
 
Family Law
Posted: Thursday, October 29, 2015
Mother, who received extensive child welfare services but took advantage of them only sporadically, and who could not show that reunification was the best alternative for the children, was not entitled to additional services.
     D.T. v. Superior Court (San Francisco Human Services Agency)
     filed October 28, 2015, First District, Div. Four
     Cite as 2015 S.O.S. 5190
     Full text click here
 
Family Law
Posted: Wednesday, October 28, 2015
Trial court did not err by ordering father to make adult support payments based on evidence that emancipated minor child was incapacitated from earning a living and without sufficient means. Trial court erred by ordering that father make adult child support payments to mother. Where the child’s incapacity--he had psychiatric disorders and lived in an out-of-state care facility--made direct payment impractical, it was up to trial court to fashion an appropriate means of making payment.
     In re Marriage of Drake
     filed October 9, 2015, publication ordered October 27 2015, Fourth District,
     Div. Three
     Cite as 2015 S.O.S. 5159
     Full text click here
 
Family Law
Posted: Thursday, October 22, 2015
Juvenile court erred in ruling that subjects of dependency petition were not "Indian children" under the Indian Child Welfare Act, where Department of Public Social Services stated in the petition that the father had claimed, based on oral representation by his father, to be of possible Cherokee heritage, and it was undisputed that the department’s efforts to contact the three federally recognized Cherokee tribes were insufficient to meet ICWA requirements.
     In re B.H.
     filed October 1, 2015, publication ordered October 22, 2015, Fourth District,
     Div. Two
     Cite as 2015 S.O.S. 5038
     Full text click here
 
Family Law
Posted: Tuesday, October 20, 2015
Trial court abused its discretion in finding that plaintiff had not demonstrated a reasonable apprehension of future abuse, as a basis for denial of her request for an extended domestic violence restraining order, where court treated the lack of any violation of the restraining order as grounds to allow it to expire, rather than as proof of its effectiveness, and where the facts that supported the granting of the order initially, as well as defendant’s failure to attend anger management classes as ordered in a different proceeding, supported renewal.
     Cueto v. Dozier
     filed September 25, 2015, publication ordered October 20, 2015, First
     District, Div. Two
     Cite as 2015 S.O.S. 4984
     Full text click here
 
Family Law
Posted: Friday, October 16, 2015
Juvenile court was not required to maintain dependency jurisdiction over person who had reached the age of 18, or to provide him with services under the California Fostering Connections to Success Act, where he had been committed to the Department of Juvenile Justice.
     In re Andrae A.
     filed September 15, 2015, publication ordered October 15, 2015, Second
     District, Div. Three
     Cite as 2015 S.O.S. 4923
     Full text click here
 
Family Law
Posted: Friday, October 9, 2015
Social services agency removed infant foster child from home, mistakenly believing exigent circumstances required the removal, and immediately placed the child with new foster parents. Court ultimately found that both couples would be excellent adoptive parents. It was not an abuse of discretion for court to permit second couple to adopt, based on its findings that couple had a "slight edge" because they had an approved adoptive home study, and because the baby had flourished under their care for the last 100 days.
     In re F.A.
     filed October 9, 2015, Fourth District, Div. Three
     Cite as 2015 S.O.S. 4815
     Full text click here
 
Family Law
Posted: Thursday, October 8, 2015
Unwed biological father who failed to support mother financially through pregnancy--although employed for part of that time, and who caused mother much emotional distress by cyberstalking her--did not have a constitutional right to parentage under In re Adoption of Kelsey S.
     Adoption of T.K.
     filed October 7, 2015, Fourth District, Div. Three
     Cite as 2015 S.O.S. 4776
     Full text click here
 
Family Law
Posted: Wednesday, September 30, 2015
Former dependent minor’s efforts to obtain employment satisfied requirements of the California Fostering Connections to Success Act (also known as AB 12), under which certain youth in foster care may continue receiving financial assistance after turning 18. Juvenile court misinterpreted the act by concluding that the youth had to be enrolled in a formal program designed to remove barriers to employment, in addition to actively seeking work.
     In re R.G.
     filed September 30, 2015, First District, Div. Two
     Cite as 2015 S.O.S. 4617
     Full text click here
 
Family Law
Posted: Wednesday, September 30, 2015
Juvenile court erred in applying Welfare and Institutions Code Sec. 361.2(a), which requires that a non-offending parent’s request for custody be granted if the child has been removed from the offending parent and there is no showing that placement with the other parent would be detrimental to the child, after disposition. Proper vehicle for such a request post-disposition is a petition to modify under Sec. 388, but the lack thereof was harmless where the issue of custody was before the court with the consent of the parties.
     In re Liam L.
     filed September 30, 2015, Fourth District, Div. One
     Cite as 2015 S.O.S. 4621
     Full text click here
 
Family Law
Posted: Tuesday, September 29, 2015
In the context of a dependency hearing to determine presumed parentage of a child, where the court has identified a presumed father based on marital status and conduct, the issue of biology is not a relevant fact, and the presumed father is not entitled to a genetic test.
     In re Emma B.
     filed September 29, 2015, Fourth District, Div. One
     Cite as 2015 S.O.S. 4594
     Full text click here
 
Family Law
Posted: Friday, September 25, 2015
Juvenile court, having determined that Japan was child’s "home state" for purposes of the Uniform Child Custody Jurisdiction and Enforcement Act, but having been repeatedly and unambiguously advised that Japanese courts operated under rules that precluded them from corresponding with foreign courts regarding jurisdictional matters, did not err in converting its temporary emergency jurisdiction under Family Code Sec. 3424(a) to permanent jurisdiction under Sec. 3421(a).
     In re M.M.
     filed September 25, 2015, Fourth District, Div. One
     Cite as 2015 S.O.S. 4521
     Full text click here
 
Family Law
Posted: Thursday, September 24, 2015
Dependency court did not abuse its discretion in denying man’s request for paternity testing and in finding that he was merely an alleged father--which under the facts of the case prevented him from establishing parenthood and from obtaining reunification services and custody of the child--where there was no evidence he was the child’s biological father or that he met the statutory requisites for presumed father status.
     In re D.P.
     filed August 26, 2015, publication ordered September 22, 2015, Fourth
     District, Div. Two
     Cite as 2015 S.O.S. 4512
     Full text click here  
 
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