**UNPUBLISHED**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**UNPUBLISHED**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

**Not Published**

Couple divorced in 1998; mother was granted sole physical custody of the couple's two girls and moved them to Georgia. In 2002, father was awarded sole physical custody - mother was not present in court. Father then picked up girls in Georgia for a supposed one-week visit to his mother's residence. He did not inform mother of custody order or that he was taking the girls to Los Angeles to live. In March 2003, parties returned to court; primary physical custody remained with father until end of school year; thereafter, mother could take them to Georgia temporarily.

A court-ordered custody evaluation was performed pursuant to Evidence Code, section 730. The evaluator suggested that mother have custody during the school year and father have custody during vacations. However, the Court had problems with mother's credibility and ordered joint legal custody with physical custody going to father during school and mother on vacations. Court denied mother's request for reconsideration; court of appeal affirmed the order.

In June 2004, father filed an ex parte application for modification to require supervision of mother's visits. Mother requested that court deny monitored visits, require that the children get therapy, appoint minor's counsel; order that the girls not sleep in bedroom with father; and order father not to take children to work. Neither parent raised the issue of physical custody. The Family court denied father's request and appointed minor's counsel. The family trial court then awarded primary physical custody of two daughters to mother. Father appealed the order, arguing that the court lacked authority to modify custody when the sole issue was visitation, improperly modifed custody using best interest standard rather than postjudgment change of circumstance, and minor's counsel went beyond scope of role.

The Court of Appeal upheld the trial court's order. Family Code, section 3087 allows modification of a joint custody order upon court's own motion if it is shown that the best interest of the child requires modification. See Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371 (best interest test, not changed circumstances test, applies to a change of parenting schedule). Pursuant to Family Code, section 3011, the court considers the health, safety and welfare of the child, the nature and amount of contact with the parent, and other relevant factors. Further, a child of sufficient age and capacity to reason is entitled to have preference seriously considered by the court. See Family Code, section 3042.

The trial court found that while living with the father, the children suffered psychological distress. Appellate court cites the way father originally moved the girls from Georgia to L.A., in addition to discipline and emotional support issues supports this finding. Given this, and that the girls desired to now live with their mother, trial court did not abuse its discretion in changing the custody arrangement.

Case: Gaymon v. Hunt
Court: Los Angeles County Superior Court
Judge: Commr. Scott Gordon
NOT CITEABLE

Labels: best interest, change of circumstances, child's preference, primary physical custody

**UNPUBLISHED**

Husband and wife marry in 1963 and divorce in 1980. Husband is a member of the IBEW (International Brotherhood of Electrical Workers) and is entitled to a pension upon retirement. This pension plan was based on contributions rather than years of service. The divorce judgment stated that the court would reserve jurisdiction over the pension until beneifts become due and payble; they would then be divided pursuant to the "Brown Formula."

Husband remarries in 1981 and divorces second wife in 1998. His pension is divided in this divorce proceeding under a QDRO (qualified domestic relations order) according to a year by year analysis of hourly contributions made and benefits to be received rather than the "time rule".

In 2005, first wife applies for her share of ex-husband's pension from the IBEW. The IBEW determines the benefit using the "time rule." Husband filed a motion in family court to determine the community interest in the pension. Husband argued that his understanding of the 1980 judgment was that the pension would be divided under the Brown formula, which meant the community interest would be based on benefits earned during marriage then divided equally. Wife argued that the "Brown" formula means division by "time rule", which would divide the number of years of marriage by the number of years worked to determine the percentage attributable to the community. The trial court agreed with wife, and ordered that the pension be divided by the time rule. Husband appeals.

The Court of Appeals finds for husband. In 1980, when the judgment was entered, the term "Brown formula" did not necessarily mean "time rule"; the lower court is free to divide the pension by some other equitable formula.

In 1976, the California Supreme Court issued it's decision in In re Marriage of Brown (1976) 15 Cal.3d 838. The court held that retirement benefits that derive during marriage (even if nonvested and unmatured) are community property subject to division in a divorce. Depending on the case, a court can either divide in-kind and retain jurisdiction (taking the gamble that employee won't die prior to retirement) or cash out the nonemployee spouse's interest by determining present value and off-setting it with other assets. Prior to Brown, nonvested or unmatured pension rights were the separate property of employee spouse at divorce.

One case interpreting Brown, In re Marriage of Judd, determined the time rule to be the appropriate mechanism to use when years of service is a substantial factor in computing the benefit. However, the time rule has never been refered to as the "Brown formula." Instead, "Brown formula" simply means that benefits earned during marriage would be divided equally. Where the pension is based on something other than years of service, such as in the present case, the time rule may not be appropriate.

Case: Marriage of Gray
Court: Santa Clara County Superior Court
NOT CITEABLE

Labels: 401(k), divorce, pension division, QDRO, retirement plan

**Unpublished**

Two years before the parties got married, husband bought a home in which wife and her daughter would reside. The deed was solely in his name. After they married, husband adopted wife's daughter. Husband filed for divorce in 2001 and requested that the court confirm that the family home was his separate property. In 2004, wife classified the house as community property and requested that it be awarded to her in full.

During the marriage, husband amended his trust in order to gift the family residence to the wife upon his death. After 2004, wife was removed from the trust and all belongings went to his three children.

Wife represented herself at trial; she testified that husband promised her the family residence and she relied on the promise. During cross-examination of her husband, wife tried unsucessfully to elicit reasons for the divorce, including that husband had run out of money and didn't know what else to do. Wife argues a divorce would not have been granted had she been allowed to question husband regarding why he wanted a divorce. The Court of Appeals found this to be harmless error, at best and not grounds for overturning the lower court's ruling based on Family Code, section 2333.

Wife also attempted to introduce three declarations from her mother, father and uncle stating that husband had promised her half of the proceeds from the family house. The family court sustained husband's objections, finding the declarations to be inadmissible hearsay. Wife argues that the declarations should have been admitted as admissions by a party-opponent under Evidence Code, sections 1220-1227. The Court of Appeal found no error in barring the declarations; although husband's statements could be admissions of a party-opponent, she would have had to show that her relatives were unavailable for trial.

Wife also objects to the trial court's refusal to allow her mother to testify during the trial. The Court of Appeals found that she violated local rules by failing to include her mother on her witnesses list and, further, failed to show that her mother would offer rebuttal-type testimony.

Finally, the trial court held that, pursuant to Family Code, section 850, there was no agreement to transfer interest in the family home to wife. Wife argues that the court erroneously found no premarial ("Marvin") promise to give her the family home. The Court of Appeals here finds that this is not the correct setting for a Marvin claim; the trial court was only required to determine the character of the home only as it related to the marriage. Since husband paid for the whole house prior to marriage, there was substantial evidence that it was his separate property under Family Code, section 850 and 2640.

Case: Marriage of Bernie
Court: Riverside County
Judge: Temp. J. Michael McCoy
**Not Citeable!!!**

Labels: community property, division of property, divorce, premarital gift, transmutation

**UNPUBLISHED**

This is the third appeal in the same divorce case.

In the first appeal, the court affirmed family court order requiring monitored visitation with mother because there was substantial evidence that mother had poisoned relationship between father and older son and it was important that cycle not be repeated.

In the second appeal, this court held that absent an identification of some part of the judgment adversely affected by failure to exchange final declarations of disclosure, non-disclosure is not a legitimate basis on which to reverse a judgment. Further, court upheld award of custody of younger son to the father because "keeping siblings together" is outweighed by preventing the younger son and father to become alienated by mother.

In June 2005, the trial court conducted a hearing to clear up outstanding OSC (order to show cause) and motions. The court ordered that mother pay fees for minors' counsel, mother was not entitled to reimbursement from father for custody evaluation because the issue did not come before the court, father was to pay $3,000 of the $13,000 of attorneys fees incurred by mother and the court denied retroactivity of child support. Mother's motions for a new trial and to vacate the order were denied. Mother then filed this appeal.

Wife argues that the judge prejudged the case or was biased against her. During the trial, while the issue of retroactivity still remained, mother became ill. The Court refused to continue the trial and her attorney had to proceed without her. The Court of Appeals found that it would be reasonable for the court to conclude that the mother was malingering; the judge could observe whether she looked sick and her attorney provided no hard proof that she was sick.

As for the attorney fee award, the Court of Appeal could find nothing in the record that mother did anything to minimize litigation. Pursuant to Family Code, section 271, the court can shape attorney fee awards based on the degree to which a party furthers or frustrates settlement. The Court feels that mother has been trying to wear down father and cause him to incur fees.

The Court of Appeal found the fees for minor's counsel was properly allocated to mother as she not only agreed to pay for them, but caused the need for minor's counsel because she was interfering with the children's relationship with their father and made false allegations of child abuse.

Finally, the Court of Appeal refused to consider the retroactivity issue as it had not been raised on appeal.


Case: Marriage of Steiner and Hosseini
Court: Orange County Superior Court
Judge: Claudia Silbar
NOT CITEABLE

Labels: attorneys fees award, child custody, minor's counsel, retroactivity of child support, section 730 evaluation

**UNPUBLISHED**

Child was born in 1998; two days later, father signed a voluntary declaration of paternity stating that he was the child's father. The next year, father took a DNA test; he was excluded from being the father. Five years later, a judgment of paternity was entered against him; he was declared the father and ordered to pay $254/month in child support. He did not appeal.

In early 2006, father filed a motion to set aside the judgment based on the fact that he was not the biological father. He asserted that mother fradulently induced him to sign the birth certificate.

DCSS opposed the motion as untimely. The trial court agreed; since father had known since 1999 that he wasn't the child's father, his motion was denied. Father filed this appeal.

Father argues that under County of Los Angeles v. Navarro (2004) 120 Cal.App.4th 246, the judgment should have been set aside on equitable grounds. In Navarro, father moved to vacate a five year old default after he had been excluded as the father via a DNA test. The Court of Appeals reversed the trial court's denial of the motion. The Court held that the error of charging the father of being the father overshadowned the public interest in finality of judgments.

Thereafter, the California Legislature enacted Family Code, section 7645 (operative 10/28/04) which states that a paternity judgment can be set aside or vacated upon motion by the person accused of being the father if DNA test shows that he is not. The motion must be brought the earliest of 2 years of when father knew or should have known of the judgment establishing him as the father or 2 years of when father knew or should have known of a paternity action. However, if paternity was established by a voluntary declaration, father must bring the motion within 2 years of the child's birth. (If is legal father as a result of a default judgment prior to 10/28/04, can bring motion by 10/28/06). The court can deny the motion if it is in the best interest of the child.

The Court of Appeal in this case finds the appeal to be barred by res judicata and refuses to second-guess the legislature to find the code section unconstitutional. Further, a mother's false claim that father was the father does not qualify as extrinsic fraud. (Navarro at 249).

Case: Ventura DCSS v. V.F.
Court: Ventura County Superior Court
NOT CITEABLE

Labels: biological father, DNA Testing, exclusion, Family Code section 7645, paternity

After hearing on a bifurcated issue regarding assets in a divorce case, a Los Angeles family law court found that husband's interest in a partnership was not his separate property as a new partnership agreement signed after marriage created a community asset.

Husband filed a notice of appeal. Appellate court holds that it lacks jurisdiction to hear the appeal because husband failed to obtain a certificate of probable cause or an order from the appellate court allowing appeal on a bifurcated issue. Husband must now wait until the entire divorce case if final before appealing.

According to In re Marriage of Van Sicke (1977) 68 Cal.App.3d 728, disputes over property can be litigated separately from the issues of marital status. Collateral issues that were decided and included in a judgment dissolving the marriage can be appealed. However, where the issue was decided separately from the issue of status, the family law court must certify in its order that the issue is immediately appeallabe or husband must file a motion to be heard with the Appellate court. See California Family Code, section 2025.

Case: Marriage of Lafkas
Court: LA Superior Court
Judge: Temp. Judge Halevy

Labels: bifurcate, community property, divorce, family law appeals, probable cause to appeal