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VOLUME 17 | NUMBER 1 | WINTER 2017

Recent Cases

Dawn Gray

In re Marriage of Cassinelli (Cal. Ct. App., Nov. 2, 2016, No. E063769) In this case, the Fourth District reversed a Riverside County trial judge that ordered H to pay spousal support to W as a remedy for the loss of her interest in H's military retirement pay when he elected combat-related special compensation (“CRSC”), which is his separate property, and waived his retirement pay in order to receive it. However, it also held that “it could properly order Robert to reimburse Janice for her lost community property interest; doing so would not violate either federal law or finality principles. Accordingly, we will reverse and remand with directions to enter an order awarding Janice the same amount on a different theory.”

In re Marriage of Fregoso and Hernandez (Cal. Ct. App., Oct. 21, 2016, No. D069614) 2016 WL 6782685: the Fourth District affirmed a San Diego County trial court’s grant of a DVRO. It held that a reconciliation between the parties can be part of the cycle of violence and does not undermine a DVRO request. It also held that the DV survivor’s testimony provided “ample substantial evidence to support the court’s implied finding that there was ‘reasonable proof of a past act or acts of abuse’ warranting a domestic violence restraining order.” In so holding, the court clarified that “[t]he testimony of one witness, even that of a party, may constitute substantial evidence.”

In re Marriage of Deborah A. and Wilson (2016) 4 Cal.App.5th 1011, 208 Cal.Rptr.3d 779: In this partially published opinion, the First District reversed a trial court’s refusal to equitably deny enforcement of child support arrearages where the obligor parent otherwise provides support for a child in “a situation in which neither parent is raising the child at home.”

S.P. v. F.G. (2016) 208 Cal.Rptr.3d 903, 4 Cal.App.5th 921: In this case, the Second District affirmed a Los Angeles trial judge who deviated from the child support guideline where H was an extraordinarily high earner. It affirmed a child support order of $14,840 per month. M alleged that C’s proposed needs were $69,420 per month, and guideline support was $40,882. It held that “the trial court rationally deviated from the guideline and properly ordered support that was not only in the best interest of E.P., but also provided a standard of living consistent with that of a financially privileged child.”

In re Marriage of Cohen (2016) 3 Cal.App.5th 1014, 207 Cal.Rptr.3d 846: In this case, the Fourth District affirmed an Orange County trial court’s orders on a post-judgment support modification motion brought by H. It held that a clause in the parties’ stipulated judgment to the effect that any future modification proceeding would be reviewed de novo did not change the change of circumstances rule. It also enforced a clause in the judgment providing that spousal support would not terminate if W remarried.

In re Marriage of Chapman (2016) 3 Cal.App.5th 719, 207 Cal.Rptr.3d 798: In this case, the Third District affirmed a trial court’s holding that one spouse’s unilateral election (after a marital settlement agreement and judgment of dissolution) to change from one type of military benefit (military retirement that is taxable and community property) to another type of military benefit (combat-related special compensation that is not taxable and separate property) cannot defeat the other spouse’s interest as set forth in the marital settlement agreement. It held that its decision did not conflict with Federal law holding that the elected form of benefit was the former service member’s separate property.

In re Marriage of Nassimi (2016) 3 Cal.App.5th 667, 207 Cal.Rptr.3d 764: In this case, the Second District reversed a trial court’s holding that Husband was solely financially responsible for defending and settling a claim brought by a third party seeking, among other things, rescission of an agreement to sell a community business. It held that the liability was an omitted community debt subject to division under Family Code section 2556.

Celia S. v. Hugo H. (Cal. Ct. App. 2016) 3 Cal.App.5th 655, 207 Cal.Rptr.3d 756: In this case, another successful appeal and publication request by the Family Violence Appellate Project (in conjunction with the Legal Aid Society of Orange County), the Fourth District reversed Judge Theodore Howard of Orange County. Judge Howard had awarded F “‘visitation’ consistent with the ‘50/50 timeshare’ arrangement” to which the parties had previously agreed notwithstanding his finding that F had “committed an act of domestic violence against appellant Cecelia S. and therefore awarded her sole legal and physical custody of the couple’s two children” after F failed to present evidence to rebut the presumption stated in Family Code §3044. Under the order, even though W had sole legal and physical custody of the children, “the children alternated living with Celia for one week and then Hugo for a week.” The Fourth District panel reversed, holding that the trial court abused its discretion by effectively awarding joint physical custody without requiring F to rebut the section 3044 presumption.

Rothstein v. Superior Court (Rothstein) (2016) 3 Cal.App.5th 424, 207 Cal.Rptr.3d 616: In this dissolution and related civil action, the Second District issued a writ of mandate compelling the Los Angeles County Superior Court to vacate its order transferring the dissolution action and the related civil case to a new judge after it granted the civil defendant’s 170.6 challenge in the civil case, and ordered it to issue a new order transferring only the related civil case to a new judge. It held that “a section 170.6 challenge filed in a case that is related to (not consolidated with) an earlier-filed case in which the assigned judge has resolved a disputed factual issue relating to the merits requires transfer of only the later-filed case to another judge.”

Pratt v. Ferguson (2016) 3 Cal.App.5th 102, 206 Cal.Rptr.3d 895: In this case, the Fourth District reversed a trial court’s denial of Husband’s petition to compel the trustee of a revocable trust of which Wife was the beneficiary to satisfy Wife’s unpaid child support and related expenses. It held that Probate Code §15305 gives the court authority to order a trustee to distribute income and principal to satisfy child support orders notwithstanding a “shutdown clause” in the trust instrument.

Wendy Randall v. Geoffrey Mousseau (2016) 2 Cal.App.5th 929, 206 Cal.Rptr.3d 526: In this case, the Second District affirmed a trial court that entered judgment for the defendant after a court trial in which there was no court reporter. After the trial court denied her motion for a new trial and judgment NOV, P filed a motion for a settled statement. D objected, arguing that P “was not entitled to use a settled statement when she had made the decision not to hire a court reporter for the trial and subsequent proceedings.” The trial court denied her motion, stating that “(t)he request places a burden on the other side who has to review the proposed settlement and provide their own version. The burden is placed on the court to conduct a settlement conference with the parties regarding the contents of the statement. Minute order contains ample information, there is no reason for a further settled statement.” The panel held that the trial court has a duty to “settle a statement.” It then discussed the procedure for requesting a settled statement, when the trial court could deny the request and the appellant’s burden to provide a record for appeal.

In re A.B. (John O. et al., v. Scott R.) (2016) 2 Cal.App.5th 912, 206 Cal.Rptr.3d 531: In this case, the Fourth District affirmed a San Diego County trial court’s order terminating F’s parental rights under Family Code §7822, which authorizes the termination of parental rights for abandonment. It held that the “period of one year” in the statute does not refer solely to the one-year period immediately preceding the filing of the termination petition.

Amy Lee Phillips v. James Eugene Campbell, Jr. (2016) 2 Cal.App.5th 844, 206 Cal.Rptr.3d 492: In this DVPA action, the Second District affirmed a trial court’s issuance of a DVPA restraining order. It held that the trial court can determine that the parties had a qualifying “dating relationship” regardless of what the parties called it, that Plaintiff “appears” at the hearing on the RO when she appears through counsel and not in person, and that the DVPA does not require a physical threat to justify a restraining order. It also held that “(t)he trial court ordered appellant to ‘not post photographs, videos, or information about [respondent] to any internet site’ and to ‘remove the same from any internet site over which he has access or control’” did not violate his First Amendment rights.

Hayward v. Superior Court (2016) 2 Cal.App.5th 10, 206 Cal.Rptr.3d 102: In this case, a First District majority issued a writ vacating all rulings and orders by a temporary judge in a dissolution action and precluding enforcement of the parties’ settlement agreement signed prior to the judge’s disqualification, finding that it was “tainted by the disqualifying conduct of the temporary judge and therefore may not be enforced pursuant to Code of Civil Procedure section 646.64.” The California Supreme Court granted review in this case on November 8, 2016. Under Rule of Court 8.111.5(e)(1), “(p)ending review and filing of the Supreme Court's opinion, unless otherwise ordered by the Supreme Court under (3), a published opinion of a Court of Appeal in the matter has no binding or precedential effect, and may be cited for potentially persuasive value only. Any citation to the Court of Appeal opinion must also note the grant of review and any subsequent action by the Supreme Court.”

Ellis v. Lyons (2016) 2 Cal.App.5th 404, 206 Cal.Rptr.3d 687: In this case, the Second District held that a trial court erred in failing to apply Family Code §3044 and applying the rebuttable presumption against joint custody for F after he engaged in an altercation with a family member in C’s presence. The court failed to consider that M had obtained a restraining order in her home state and failed to hold that the entry of a protective order against F “meant section 3044 must govern the family law court’s determination of her request to modify the existing custody order for Minor.” However, it also held that the trial court did not abuse its discretion in failing to reinstate child support payments from F based on no showing of a change in circumstances.

Heidi S. v. David H. (2016) 1 Cal.App.5th 1150, 205 Cal.Rptr.3d 335: In this case, the Second District affirmed an LA County trial court that denied W’s motion to modify a juvenile court exit order awarding F legal and physical custody of C and limited supervised visitation to W. W brought the family court motion on the basis of changed circumstances just three months after entry of the exit order; the trial court found changed circumstances and expanded W’s visitation but refused to award joint legal and physical custody. In what it calls a case of first impression, the Second District holds that all of the trial court’s drug and alcohol testing orders were proper under Family Code §3041.5 and that  “(n)othing in the statute limits the family court to ordering drug testing for a fixed period of time.” It also held that the family court has the authority to order that a positive drug test result would immediately trigger a reduced visitation schedule.

JAMS, Inc. v. Superior Court (2016) 1 Cal.App.5th 984, 205 Cal.Rptr.3d 307: In this case, the Fourth District denied a petition for writ of mandate to compel the trial court to vacate its order finding P's action against JAMS and Hon. Sheila Prell Sonenshine (Retired) exempt from the anti-SLAPP procedures under the commercial speech exemption of section 425.17(c). It held that the "commercial speech exemption applies and precludes the use of the anti-SLAPP procedure in this case," which arose out of P's use of JAMS for alternative dispute resolution in his dissolution case. The complaint alleges that JAMS and Sonenshine omitted material information in their biography of her on their website. The panel said that "Kinsella's causes of action against JAMS and Sonenshine arise from statements posted on the JAMS Web site regarding Sonenshine's background and qualifications to provide ADR services as well as general statements about how JAMS conducts its business in providing ADR services. These statements fit comfortably within the commercial speech exemption of section 425.17, subdivision (c).”

Anne H. v. Michael B. (2016) 1 Cal.App.5th 488, 204 Cal.Rptr.3d 495: In this case, ordered partially published on July 12, 2016, at the request of ACFLS, the First District affirmed a trial court’s order denying M’s request to modify a permanent custody order giving custody of the parties' daughter to F during the school year and to M during the summers. The trial court found no change in circumstances. In affirming, the panel held that “the statement in the custody order specifying changed circumstances requiring a reconsideration of custody arrangements was not binding on subsequent judges.”

Perez v. Torres–Hernandez (2016) 1 Cal.App.5th 389, 206 Cal.Rptr.3d 873: In this case, the First District reversed a trial court’s order denying a request to renew a DVRO. It held that the trial court applied the incorrect legal standard to deny the request by erroneously concluding that there must be new evidence of abuse or threatened abuse to renew the order; that the restrained party’s past abuse or violations of the existing order did not support renewal; that the evidence of “new” abuse must be physical in nature; and that evidence of the restrained party’s abuse of the couple‘s children was not relevant to the DVRO renewal.

In re Abbigail A. (2016) 1 Cal.5th 83, 204 Cal.Rptr.3d 760: In this case, the California Supreme Court held that one ICWA Rule of Court - Rule 5.482(c), which requires the juvenile court to "proceed as if the child is an Indian child" and to take steps "to secure tribal membership for the child," is invalid, but that Rule 5.484(c)(2), which "merely directs the juvenile court to pursue tribal membership for a child who is already an Indian child as defined in ICWA, in order to prevent the breakup of the Indian family and to qualify the child for tribal services," is "consistent with state law and valid."

In re Alexandria P. (2016) 1 Cal.App.5th 331, 204 Cal.Rptr.3d 617: In this case, the Second District affirmed a trial court that held that C’s foster parents had not proven by clear and convincing evidence that “there was good cause to depart from the adoptive placement preferences set forth in the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.).” It is a long and interesting opinion, discussing standards of proof and many factors impacting on the ICWA, foster parents and the factors that the court uses to determine whether to place an Indian child with extended family members for adoption.

In re Isaiah W. (Cal. 2016) 1 Cal.5th 1, 203 Cal.Rptr.3d 633: In this case, a California Supreme Court majority held that “a parent who does not bring a timely appeal from a juvenile court order that subsumes a finding of ICWA‘s inapplicability may challenge such a finding in the course of appealing from a subsequent order terminating parental rights. Because ICWA imposes on the juvenile court a continuing duty to inquire whether the child is an Indian child, we hold that the parent may a challenge a finding of ICWA‘s inapplicability in an appeal from the subsequent order, even if she did not raise such a challenge in an appeal from the initial order.”

Erler v. Erler (9th Cir. 2016, No. 14-15362): In this case, a 9th Circuit panel held the duty of support under a sponsorship contract extended beyond entry of dissolution judgment incorporating the waiver of spousal support provision of the parties’ premarital agreement, even when coupled with showing that Wife was adequately supported by third party (in this case, her adult son). This case discusses the factors and the public policy grounds upon which the sponsorship law is based and the relationship between state and federal courts. Specifically, the 9th Circuit held that: "[w]e agree with the district court to the extent it found that, despite the divorce, Yashar has a continuing obligation to support Ayla. However, we hold that court erred in treating Ayla and Dogukan as a combined household for purposes of determining whether Yashar breached that obligation." The parties’ California divorce previously resulted in an unpublished opinion upholding the validity of the parties’ premarital agreement.

DP Pham, LLC v. Cheadle (2016) 246 Cal.App.4th 653, 200 Cal.Rptr.3d 937: In this case, the Fourth District reversed a trial court’s refusal to seal and exclude allegedly privileged documents and disqualify P’s counsel where he improperly obtained copies of privileged communications between D and his attorney and used them to oppose another party’s summary judgment motions. The trial court reviewed the communications and held that based on their content, they were not privileged. In reversing, the panel held that “Once the proponent makes a prima facie showing of a confidential attorney-client communication, it is presumed the communication is privileged and the burden shifts to the opponent to establish waiver, an exception, or that the privilege does not for some other reason apply. The opponent may not rely on the communication's content to make that showing.”

Anna M. v. Jeffery E (Cal. Ct. App., January 11, 2017, No. B267004) In this case, the Second District affirmed Judge Juhas’s order that F pay guideline child support. M’s monthly living expenses (approx.. $30,000 per month) were completely paid by a non-romantic friend, in whose house she and C resided. M did not work. F argued that the amount that the friend paid for M’s support should be considered as “income” to her for purposes of lowering his child support obligation, but the trial court disagreed and the Second District affirmed. It discussed all of the gift-from-family cases and concluded that “(c)onsistent with Alter, the trial court had the discretion to characterize Davis’s cash gifts to Anna as her income, but it was not required to do so if it concluded those gifts do not fairly represent income and are not funds available for child support. We conclude the evidence was sufficient for the trial court to reasonably conclude the financial support Davis provides Anna does not represent a regular, recurrent monetary benefit fairly representing income for purposes of calculating the child support award.”

Board of Supervisors v. Superior Court   (December 29, 2017) In this case, a Supreme Court majority held “that the attorney-client privilege does not categorically shield everything in a billing invoice from PRA disclosure.  But invoices for work in pending and active legal matters are so closely related to attorney-client communications that they implicate the heartland of the privilege.  The privilege therefore protects the confidentiality of invoices for work in pending and active legal matters.” It also said that “(i)nvoices for legal services are generally not communicated for the purpose of legal consultation. Rather, they are communicated for the purpose of billing the client and, to the extent they have no other purpose or effect, they fall outside the scope of an attorney’s professional representation.” It reasoned:

After all, a lawyer may well send a government client an e-mail that has nothing to do with legal advice.  For example, a lawyer might e-mail details about a firm’s efforts to move to a newly constructed office building or host a political fundraiser.  Even if these communications are confidential (as would be true for any e-mail communication), they are not made for the purpose of legal consultation and are therefore not protected by the attorney-client privilege.

The same is true for billing invoices.  While a client’s fees have some ancillary relationship to legal consultation, an invoice listing amounts of fees is not communicated for the purpose of legal consultation.  The mere fact that an attorney transmitted a communication to his or her client confidentially (in the sense that no one other than the recipient could see the communication) does not end the inquiry into whether the communication’s contents are protected by the attorney-client privilege.  After all, just about every communication between a lawyer and client is intended to be kept private, regardless of whether the communication has any connection to legal consultation at all.  Even the fact that the information communicated may have some ancillary bearing on an attorney’s relationship to a client (as information about an office move or political fundraiser might have) does not end our inquiry into whether the attorney-client privilege applies.  Nor does the fact that an attorney would prefer to keep the information confidential (as most people would prefer for their emails).What the inquiry turns on instead is the link between the content of the communication and the types of communication that the attorney-client privilege was designed to keep confidential.  In order for a communication to be privileged, it must be made for the purpose of the legal consultation, rather than some unrelated or ancillary purpose.”

Sagonowsky v. Kekoa (December 21, 2016 16 DJDAR 12600) In this case, which the First District calls the "latest chapter of this lengthy and acrimonious marital dissolution – which the trial court dubbed a 'litigation war'," the panel held that "sanctions awarded pursuant to section 271 are limited to 'attorney's fees and costs' and, as a result, the court erred by imposing sanctions of $500,000 for Sagonowsky's conduct in increasing the cost of the litigation and frustrating settlement, and by imposing sanctions of $180,000 for causing a reduction in the sale price of real property awarded to Kekoa in the dissolution judgment, because these amounts were untethered to attorney fees and costs incurred by Kekoa."

The trial court had "also partially granted Kekoa's motion for rents and security deposits (rents motion) Sagonowsky received on properties awarded to Kekoa in the dissolution judgment and ordered Sagonowsky to pay Kekoa $28,510.80," which the panel affirmed. It also held that the trial court did not violate Rule 1.100 when, "(i)n its written order, the court determined Sagonowsky was not disabled, and that she did not need the accommodation of a trial continuance. The court also implicitly determined Sagonwosky's requested accommodation — a six-month or 'indefinite' continuance — would impose an undue financial or administrative burden on the court. Substantial evidence supports the court's conclusions."

Marriage of McLain (January 16, 2017) In this case, the Fourth District affirmed a trial court that ordered spousal support for W, holding that the recipient spouse was entitled to retire, disagreeing with H that a recipient spouse could never "retire" because she was always required to make reasonable efforts to assist in her own support. It also affirmed the trial court's order that H contribute to W's attorney fees, and its holding that H had not adequately traced his separate property contributions into the parties' community residence under Family Code §2640. H argued that tracing did not require documents, and that the handwritten document he prepared was sufficient, but the panel held that his testimony and one unsubstantiated document did not meet his tracing burden.

Editor's addition:
Kahn v. Shim 17DJDAR (December 29, 2016) In this case the Sixth District reversed and remanded. Civ. Code §1717 (b)(2) does not allow a party to recover attorney fees and costs upon opposing party's voluntary dismissal of K claims notwithstanding attorney fees clause in K, but section does not bar fees and costs on tort claims. The Court remanded to the trial court to determine if attorney fees could be apportioned between the contract and tort claims, and left open the possibility that the fees for each could be "too intertwined" to be allocated by the trial court.

 



                                                                                                                                                                         
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