Marriage of Gimple and Parker

In this unpublished First Appellate District decision, the Court finds that reversible error was committed by the trial court when it failed to issue a Statement of Decision upon request of mother, as required by California Code of Civil Procedure, section 632. The case was remanded back to the trial court to issue a proper statement of decision.

Husband and wife obtained a status-only divorce in 2004; the court retained jurisdiction with regard to the custody and visitation of the minor child. During the subsequent trial on June 20, 2005, mother asked for primary custody and requested permission to relocate with child to New Mexico. Father requested joint physical and legal custody, with primary residence to be with father during the school year. The court issued its ruling orally, awarding joint physical custody with primary physical custody to father. Father was awarded sole legal custody.

In awarding sole legal custody to father, the court found that the father was more likely to facilitate an ongoing relationship between the child and the other parent; mother seemed to be "somewhat inflexible" on the issues which could affect her dealings with regard to father's contact with child. The court awarded solely legal custody to father because the parties had too many disputes over issues such as education, therapy, medical treatment; one parent needs to make these decisions. The court also made specific and detailed orders with regards to visitation. Finally, the court declared that the order would last one year only and was not a permanent order. At the end of the hearing, the court stated it's assumption that father's counsel would prepare the judgment and counsel agreed.

Only July 29, 2005, mother filed a written request for a statement of decision and motion for reconsideration. Mother requested that the court set forth the evidentiary and legal basis for deciding: legal custody; physical custody; that the order be temporary; that only the past two years of child's life was considered with regard to parental involvement.

Over the course of the next few months, the court kept deferring the matter of issuing a statement of decision and eventually ordered wife's counsel to prepare an amended request. This new request asked for the basis for awarding sole legal custody when neither party had requested that it be changed from joint; physical custody, including basis for denial of move to New Mexico; and why the order was deemed temporary. In the meantime, another hearing was held on November 2, 2005; the court issued findings and a visitation order and ordered father's counsel to prepare a proposed statement of decision.

On June 20, 2006, the court filed its Judgment on the custody and visitation issues from the June 20, 2005 determination. Mother timely appealed, contending that the court committed reversible error by not issuing a statement of decision as required by California Code of Civil Procedure, section 632. (See also Family Code, section 3022.3).

The Appellate Court found that the trial court was required to issue a written statement of decision following mother’s timely written request. “In a nonjury trial, the trial court’s failure to render a statement of decision after timely party request…is reversible per se.” See Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) citing In re Marriage of Sellers.

The case was remanded to the trial court to issue a proper statement of decision, although many of the issues are now moot and a new trial is not required.

Labels: child custody, reversible error, statement of decision, visitation

**Not to be Published**

Gorshkov v. Zakharova

Husband filed for divorce in June, 2006. Wife failed to respond and default judgment was entered in September 2006. In March 2007, wife filed a motion to set aside the judgment; it was denied. The lower court found that, even though the motion to set aside the judgment was timely pursuant to Code of Civil Procedure, section 473, the motion to set aside the entry of default was not. Further, there was no proof that setting aside the judgment would alter the outcome under Family Code, section 2121. The court further found that wife lacked credibility in her declaration.

Wife argues that the court abused discretion and exceeded bounds of reason - the court did not consider all the facts and law essential to an informed, intelligent and just decision. For instance, as to merits, the court stated that it would be unlikely for wife to ever receive spousal support; this was arbitrary, capricious and whimsical thinking as she would at least be entitled to temporary support while the divorce was pending.

HELD: wife has not provided support for claim of error; further, credibility is an issue for the trial court.

Labels: motion to set aside default

**NOT TO BE PUBLISHED**

Marriage of Lazor and Schoenbrun

Father was ordered to pay $14,500 in legal fees to the attorney appointed by the court to represent couple's three children during the divorce; mother's attorney had requested that an attorney be appointed. He argues that the Marin County local rule authorizing payments is inconsistent with the Family Code.

Initially, the appointed attorney ("Lueders") was to be paid the "court rate" of $65 per hour; the fees were to be split equally by the parents. Later in the hearing, mom's attorney suggested that Lueders be paid normal rates ($250/hr). In January 2007, Lueders filed motion for his fees and costs - father owned $14,500.

In response to Lueders's motion, father argued that he did not have the financial ability to pay. He also argued that the order did not comply with Family Code, section 3153 because it allowed for the order without determining ability to pay as there was no sum certain. The lower court held that this father must make this argument in the form of a Motion for Modification of the original order, not in a reply brief to motion for fees. Father now argues that this burden is improper.

HELD: father waived right to object to order as he had already begun paying a portion of it. He also failed to bring a motion to modify based on his inability to pay. Further, it is not clear that the trial court did not conduct a proper examination into ability to pay as father's counsel assented to the agreement at the time of appointment.

Labels: minor's counsel; attorney fees; ability to pay

**Partial Publication Only**

Sarah B. v. Floyd B.

Mother and father began dating and shortly after found that mother was pregnant; mother was in the air force in Texas, father lived in San Diego. Mother left the air force and moved to San Diego before the baby was born. Approximately six months later, mother and baby moved to Los Angeles for six month active duty tour. She and baby returned to San Diego and approximately one year later mother got a new job, with benefits and health insurance for the baby. Mother and father began fighting; father refused counseling. In February 2006, mother left father by taking baby and driving to sister's house in Colorado.

In March 2006, mother filed Petition to Establish Parental Relationship in San Diego County; the parties went to mediation later that month but could not agree on a custody plan. The mediator recommended that baby reside primarily with mother. In May 2006, court entered judgment of paternity establishing father's parentage and temporary custody orders allowing mother to keep baby in Colorado; father was granted visitation. Court delayed the custody determination pending a custody evaluation. In October 2006, court heard testimony from both parents and father's friend and considered the evaluation. The court granted primary physical custody to mother with visitation to father every other week (half in San Diego, half in Colorado).
The court found that there was a more mature and stable relationship between mother and daughter.

Father argues that trial court erred in not finding that mother was in violation of the standard temporary restraining orders (TRO) when she moved the child to Colorado; that court should not have adopted reports of the mediator and child custody evaluator; and that the court failed to apply the move-away standard appropriately.

Custody and visitation orders are reviewed for abuse of discretion under the "best interest of child" standard.

Issues:

1.) Did mother violate TRO that took affect when she filed the paternity action that prevents either parent from taking child out of state without written permission of other parent or by court order (Family Code, Section 7700; Uniform Parentage Act)? Father argues that mother should have been required to return child to Colorado when temporary orders were issued. HELD: No - the statute does not state that a child who is already residing in another state when the petition is filed must be returned to California. In the absence of a court order or custody decree, both parents have equal right to custody (Family Code, section 3010 and 7500). Cline v. Sup. Ct. (1982) 135 Cal.App.3d 943. Furthermore, even if the TRO was violated, custody is determined in "best interest of child"; therefore, court could determine that it was in child's best interest to not be returned to California.

2.) Did CA courts have jurisdiction of custody of child living out of state? Yes. CA Courts can make initial custody determination as long as child lived in California within six months before the action is filed and at least one of the parents still lives there. (Family Code, section 3421)

3.) Did court apply the "move-away" standard incorrectly? Father argues that court failed to consider the child's interest in stability and continuity; distance of the move; age of child; relationship with both parents; relationship between parents; reason for the move; and extent of current custody. HELD: court applied the correct standard. As this was an initial permanent custody determination (and thus not a true "move away" case), the court had to devise a parenting plan in the child's best interest. Pursuant to Family Code, section 7501, parent can change residence of child unless the removal would prejudice the rights and welfare of the child. See, In Re Marriage of Burgess (1996) 13 Cal. 4th 25. The record showed that court did consider best interest and commented upon which parent would be more likely to aid in the child's relationship with the other.

4.) Did court apply "best interest" standard? Yes, court concluded that mother had a more stable and mature bond with child and that father might have trouble dealing with pressure of raising a young girl. In essence, it would be more detrimental to remove baby girl from mother than from father.

Labels: best interest, child custody, move-away, temporary restraining order

The 1st Appellate Court recently published the opinion in Gong v. Kwong, dismissing the appeal and imposing sanctions against the appellant and his attorneys.

Husband Kwong and Wife Gong were married for 21 years and had two children. In 1994, they divorced and signed a marital settlement agreement (MSA) which was incorporated into the dissolution judgment. In pertinent part, the MSA called for husband to pay $2,500 a month in child support for his children (then 14 & 16) until they reached 25 & 27 respectively. He also agreed to split the cost of college.

Husband made just a few payments before he defaulted on the agreement. In 1996, wife filed a motion to recover approximately $130,000 in back payments; they settled (in theory) for $115,000. However, husband never paid wife. In 1999, wife asked the court to appoint a receiver and to issue a charging order against husband's partnership interest in a shopping mall. The matter was heard in May and June of 2000. The judge ruled that husband's arrearages had increased to approximately $300,000, appointed a receiver, and issued the charging order against the partnership interest. Due to back and forth between the parties and the judge over the wording of the order, the order was not issued until March 1, 2001. Thereafter, the balance was paid down in quarterly payments of $30,000.

In September 2005, husband's attorneys filed a motion seeking an order that husband had satisfied the obligation. Further, husband claimed that he had paid $30,000 more than he owed, arguing that the support was suspended during the period from May 2000 (when the decision was rendered) to March 2001 (when the order was entered) as the order entered on March 1, 2001 used the words "current amount due" and indicated the amount that had been due at the time of the decision the previous year.

The lower court rejected husband's argument, finding that the word "current" referred to the date when the evidence was entered (May 2000). Husband appealed, and wife asked for sanctions for a frivolous appeal.

Discussion: Code of Civil Procedure, section 907 provides for damages for an appeal that is frivolous or taken solely for delay. Rules of Court, rule 8.276(e)(1) allows for sanctions on a party and or the party's attorney for the same. An appeal is frivolous when it is taken for an "improper motive" or when it indisputably has no merit (any reasonable attorney would agree). Courts have held that a total lack of merit is evidence that appellant must have intended it only for delay.

HELD: there is no reasonable basis to conclude that the judge had decided that no additional sums had accrued between the time the decision was rendered and the order was rendered. The words "current" and "now" must be read in context. Further, a finding that "current" and "now" referred to the period when the order was entered (March 1, 2001) would act to modify the original support order (i.e. wipe out nine months worth of payments) when no motion to modify had been made. See, Family Code, section 3651. Further, the appeal is a cynical attempt by husband and his lawyers to harass his wife by delaying payment. "Counsel's sophistry goes beyond proper advocacy, demonstrating a willingness to assist...harassment and to abuse the court's processes." In essence, the judge's words were twisted in an effort to subvert the judge's intent.

The Appeals Court finds this to be a frivolous bad faith appeal warranting sanctions in the amount of $15,000 to wife and $6,000 to the court of appeal. The sums are chargeable to both husband AND his attorneys. "An attorney in a civil cases is not a hired gun required to carry out every direction given by the client. As a professional, counsel has a professional responsibility not to pursue an appeal that is frivolous or taken for the purpose of delay, just because the client [says so]."

Finally, the attorneys were ordered to notify the State Bar of the sanctions against them.

Labels: child support, divorce, frivolous appeal, marital settlement agreement, sanctions

**UNPUBLISHED**

Husband and wife had been married for thirty years. Wife filed for divorce when she was 54; husband was 56 and was a physician employed full time by UCLA. Husband received additional income from speaking engagements, writings and honoraria. Wife filed an order to show cause (OSC) for spousal support. At issue were husband's consultation fees for treatment of a Saudi Arabian head of state, who husband travelled to see once a year.

Wife was a registered nurse and had an MS and PhD in nursing and child development. She worked as a head nurse and research coordinator at UCLA and had been on the faculty of the UCLA School of Nursing. After her children were born, she focused on raising the family and worked only part-time for the past twenty years. She is currently unemployed.

Wife claims that husband makes $266,000 per year for his house calls to Saudi Arabia. Husband claims that the house calls are sporadic and are now limited to a maximum of $140,000 per year. Further, the patient will soon die, and the visits will cease.

The family trial court found that husband's income approximated $54,000 per month; no income was imputed to wife. The court ordered husband to pay $21,000 in spousal support. After the patient died in Saudia Arabia, husband filed an OSC to modify spousal support. The court found that husband's monthly income had been reduced to $35,000 and set alimony at $12,000 per month.

Wife appeals, contending that husband failed to meet his burden to show that his lost income could not be replaced. She also argued that court should wait 12 months before determining whether husband can replace his income.

Court of appeals upheld lower court decision. Family Code, section 3600 allows for temporary alimony during a divorce. The support is intended to maintain the living conditions as close to the status quo as possible. The trial court has broad discretion in making the award, subject only to wife's needs and husband's ability to pay. Here, the majority of wife's contentions relate to an award of permanent alimony. The lower court rightly relied on husband's present ability to pay and wife's present needs.

Case: Verzemnieks v. Cummings
Court: Superior Court of Los Angeles County
Judge: Richard E. Denner
NOT CITEABLE

Labels: alimony, modification, spousal support

**UNPUBLISHED**

Wife alleged that during marriage, husband fraudulently transferred two community assets to relatives by tricking her into signing a quitclaim deed on the first property and purchasing the second property with community funds and giving it as a gift to his nephew. In a divorce proceeding in LA County, trial was conducted regarding the characterization and division of marital assets. The trial court believed the wife, finding clear and convincing evidence that husband breached his fiduciary duties and committed fraud. Wife was awarded two parcels of real property in their entirety.

Husband appealed the trial court judgment. He filed a notice electing to file an appendix in lieu of clerk's transcript, but failed to file the appendix. Husband contended that the trial court findings of breach of fiduciary duty and fraud weren't supported by substantial evidence.

Held: failure to provide an adquate record on appeal regarding the contention of insufficient evidence is sufficient basis for appellate court to decline to consider the claim. Further, husband's argument that the action was barred by the statute of limitations fails under Family Code section 1102(d) as wife did not know about the transfer and the transferee (husband's sister) knew that it was community property.

Case: Nazaryan v. Tonoyan
Court: Los Angeles Superior Court
Judge: Michael Linfield
NOT CITEABLE

Labels: division of property, divorce, fiduciary duty, fraudulent transfer

**Unpublished**

Father is a resident of Mexico and won $24 million in the California lottery; he is paid in 26 annual payments. His daughter was born in June 2005.

In June 2005, DCSS (Department of Child Support Services) issued a summons and complaint against father for child support, seeking approximately $5,000 per month. His income and expense declaration indicated that the lottery payments were $54,000 per month. His mother, siblings, and nephews also lived with and off of him. His average expenses were $24,550, including $3000 for enterainment, $4,000 for charitable contributions and $5,000 for eating out. Mother had been receiving public assistance of $360 per month and had three other dependent children.

Father argued that he should not be required to support mother's other three children, that he has five dependents of his own, that mother tricked him into having the child and that the payments benefit the mother more than the child. He sought a reduction to $1,359/month.

Lower court made a child support order in June 2006 based on the guideline amount of $5,478 per month with annual increases to reflect the increase in lottery payment amounts. Father argues that the court abused its discretion in failing to deviate from the guideline based on his "extraordinarily high" income (See Family Code, section 4057(b)(3)) or, alternatively, by failing to apply equitable principles to reduce the payments.

The Court of Appeals upheld the lower court ruling. The guideline child support is presumptively correct pursuant to Family Code, section 4055 and 4057(a). The presumption can be rebutted by evidence showing that application of the guideline would be unjust or inappropriate. For example, where the parent has an extraordinarily high income, the amount would exceed the needs of the child.

Here, the unintended consequence that mother's other children will benefit from the payments is not enough to overcome the presumption; children should share in the standard of living regardless of whether it also improves the custodial household.

Case: DCSS v. Roldan-Lopez
Court: Santa Clara
NOT CITEABLE

Labels: child support, DCSS, extraordinarily high income

**UNPUBLISHED**

During a mandatory settlement conference in a divorce proceeding, wife was unrepresented but brought along two friends. The judge met separately with husband and his lawyer, then with wife and her two friends. Husband presented a proposed judgment containing terms that he claimed wife had initially agreed to. Once back in the courtroom, the judge recited a list of terms that the parties had supposedly agreed to. Wife did not say much. The judge instructed husband's attorney to write up the terms, and set a further conference. However, wife filed a motion for reconsideration, and so the judge just set the matter for trial. However, before trial could commence, husband filed a motion under California Code of Civil Procedure, section 664.6 to enforce a settlement he claims was "reached in open court" during the initial settlement conference. Wife opposed the motion, denying that she had agreed. During the hearing, the judge claimed that wife had agreed to the terms but wanted time to determine if she could refinance the family home. Wife denied this. Judge granted the motion to enforce the agreement. Wife now appeals.



Under Code of Civil Procedure, section 664.6, if parties stipulate to an agreement orally before a court for settlement of the case, the court may enter a judgement pursuant to the terms of the settlement upon motion if supported by substantial evidence. Here, husband doesn't argue that wife agreed. Rather, he claims she accepted the contract by her conduct of accepting the benefits of the judgement. The Court of Appeal finds, however, that this isn't enough to evidence consent under Conservatorship of McElroy. Even wife's statements in open court did not rise to the level of unambiguous oral assent. There is also evidence that the Court knew the agreement was only tentative, but enforced it anyway.

Case: Marriage of Siegrist
Court: San Bernardino County
Judge: David Williams
NOT CITEABLE

Labels: civil procedure 664.6, divorce, oral settlement agreement

Issue: as a general rule, earnings aquired after the date of separation are the separate property of the earner. What determines the date of separation? The following case offers and example...

Husband and wife were married in 1986. Wife became chronically ill in 1993 and the couple stopped living together. Husband moved out of the home, but continued to provide health insurance to his wife through his employer. The couple also continued to file joint tax returns, and husband financially supported wife through 2004 in the form of $400 to $600 monthly payments. In 1996, wife was diagnosed as being bipolar; son was bipolar as well. Son lived with the wife until 2003; husband and wife talked daily throughout this period. Husband also visited on holidays and had some occasional meals. In 2001, husband made a downpayment on a mobile home for the wife and son to live in. The title was in husband's name alone, but the couple both signed the mobile home park documents and represented that they would be living there as husband and wife. He, in fact, did not live there but paid all mortgage, tax and insurance payments. He continued to pay the mortgage even after wife moved out.

In 2004, husband notified wife that he was going to file for divorce. In June 2005 he filed his petition, listing 1993 as the date of separation and provided affidavits in support of contention that he intended to end his marriage in 1993. In early 2006, the family law trial court found that 2004 was the first time husband clearly articulated to wife his intent to end their marriage. The court also found it to be a long-term marriage pursuant to Family Code, section 4336 and ordered husband to pay $700/mo in alimony until death or remarriage plus attorneys fees. The mobile home and the couple's pensions were found to be community property.

In August 2006, husband filed a request for statement of decision; it contained 81 questions for the court to answer. A statement of decision was not issued prior to entry of judgment in October. Husband appeals.

The date of separation is a factual issue to be determined by court by preponderance of the evidence. Pursuant to Family Court, section 771, a spouse's earnings and accumlations while separated is separate property. Generally, the date of separation is the date on which either party does not intend to resume the marriage and makes it known to the other party.

The Court of Appeals found that the trial court did not abuse its discretion in not discussing each question listed in husband's request for a statement of decision - it need only explain factual and legal basis for it's decision. Although the trial court discounted some of wife's testimony, it ultimately found husband's conduct to be inconsistent with an intent to end the marriage in 1993. To determine date of separation, the must be both a subjective and objective intent to end the marriage. (See In re Marriage of Norviel (2002) 102 Cal.App.4th 1152). Words and actions determine intent. Conduct such as attending joint counseling sessions, daily phone calls, joint tax returns, and paying for a mobile home that you hold out as your marital residence evidenced an intent to not end the marriage.

**UNPUBLISHED**

Case: Marriage of Niedermann
Court: Superior Court of LA County
Judge: Commr. Louise Halevy
NOT CITEABLE!

Labels: date of separation, divorce, separate property, statement of decision