In December 2005, wife sought a domestic violence temporary restraining order (DVRO) against husband seeking custody of their children and noticed a motion on her request for a three year restraining order. She alleged that husband had grabbed her by her throat and threatened her with a potato peeler and subsequently locked her out of the apartment for several days.

In answering the the temporary order request, husband agreed to wife's custody request but denied physically attacking her. He further asked the court to enforce the previous settlement agreement as to child and spousal support (alimony) that had been signed by the parties the year before. The agreement gave full and legal custody of the five children to the wife.

At the January 2006 hearing, both parties appeared pro per (wife is a licensed California lawyer). The court found husband guilty of domestic violence, granted the restraining order and awarded wife sole custody with monitored visitation to husband.

Husband then retained counsel who filed a motion for new trial and to set aside the restraining order pursuant to Code of Civil Procedure, section 473. Husband claimed that he did not understand the importance of the domestic violence action on child custody and related issues but that wife knew exactly what she was doing as she was a family law attorney.

Wife alleged that husband was erroneously relying on Family Code, section 3044 to support his motion (though not specifically cited) because it creates a rebuttable presumption that an award of custody to a domestic violence perpetrator is not in the child's best interest and requires a court to inform parties about the statute in certain circumstances. Wife argued that section 3044 applies only when the perpetrator is the one seeking custody and that it only requires notice prior to a custody mediation. Neither applied to the present case.

Husband further alleged that wife failed to prove by a preponderance of the evidence that he committed domestic violence. The appellate court found that there was substantial evidence to support the ruling.

Husband had argued that had he been notified pursuant to section 3044, he would have more vigorously contested the abuse allegations if he had known it would have triggered the presumption against custody. The Court of Appeal held that notice is only required to be given prior to a custody mediation.

Case: Sabbah v. Sabbah
Court: Superior Court of Orange County
Judge: Josephine Staton Tucker

Labels: child custody mediation, domestic violence restraining order, Famil Code section 3044

In this partially published opinion by the California Court of Appeal, First District, a dissolution / divorce judgment was challenged on numerous property and support rulings of the trial court.

Wife filed petition for divorce in 1997 and the spouses stipulated to the joinder of husband's father as a claimant. The issues relevant to this appeal were reserved and tried in 2005.

One of the main issues at trial was characterization of four pieces of property located in California in which wife claimed a community property interest. The deed to the first property was deeded to husband "an unmarried man" during the marriage, was then deeded to husband's father later during marriage, and husband's father testified that he gave his son the money to buy the property. The second property was deeded to husband ("unmarried man") and his sister during marriage, father testified that he gave the money for the property, and property was deeded to father later during the marriage. The third property was deeded to husband by his sister as "married man as his sole and separate property"; father testified that he provided the funds for the downpayment; property was later deeded to father. The fourth property was deeded to husband by his father; the property was later deeded back to the father.

After an 18-day trial, the Court found that the properties were either purchased by the father to help the son get a green card or were purchased by father with money the son had earned during the marriage and sent to the United States from Iran. Because they were acquired during marriage, the parties agreed that they were presumed to be community property pursuant to Family Code, section 760. Yet, the trial court found them to be husband's separate property as there was no documentary evidence that the purchase money had come from the husband; the court determined that they were gifts from father to son. The trial court rejected wife's argument that the section 760 presumption can only be overcome by clear and convincing evidence and tracing by written documentation. The Court of Appeal agreed with the trial court, citing In re Marriage of Haines (1993) 33 Cal.App.4th 277 (section 760 presumption overcome by preponderance of the evidence).

The trial court further awarded wife one-half interest in other properties located in Iran; wife appealed, arguing that the trial court should have ordered the properties sold and the proceeds split between the parties. Finally, wife challenged the trial court's order that the cost of health insurance for the couple's minor child be split between the parties. The Court of Appeal upheld the trial court's decision on these matters finding no abuse of discretion.

Case: Marriage of Ettefagh
Court: Marin
Judge: Smith

Certified for Partial Publication only!

Labels: community property, dissolution, divorce, gift, health insurance, smith