The decisions of three Riverside County judges have recently been upheld by the Court of Appeals, Fourth District, in the unpublished opinion In re Marriage of Romero. Husband appealed denial of temporary spousal support, denial of his request for attorneys fees and termination of the marriage.

The lower court denied Husband's request for temporary spousal support based on the fact that Husband had a restraining order against him in another county. Husband argues that Family Code section 3600 supported his request for temporary spousal support and that it was error to deny his request. He also argued that the court erroneously relied on Family Code section 4320(d) in reviewing his request.

Family Code section 3600 authorizes a court to award temporary spousal support if necessary for support of a spouse, consistent with sections 4320 and 4325. Section 4320(i) says the court should consider history of domestic violence between the spouses when determining the amount of support. Section 4325(a) establishes a rebuttable presumption for denial of a request for support if the requesting party has been convicted of domestic violence against the other spouse within five years of the filing of the divorce case or at any time after the case is filed.

A record of the testminony presented at trial is helpful in determining the presence or absence of judicial error; Husband failed to provide a transcript of the proceeding. There was a note in the record that "Father" had a restraining order from San Diego County, wife had filed income and expense records and also had her request for waiver of court costs approved. Thus, no error could be found in denying Husband's requst.

As to the denial of Husband's first request for attorney fees and costs, he argued that Family Code section 2030, 2031 and 2032 supported his request. Pursuant to section 2030(a)(1), an award of attorney fees and costs is permissible to ensure that each party has legal representation during a divorce case. Awarding the fees must be "just and reasonable under the relative circumstances of the respective parties", under 2032(a). A court must balance one spouse's need against the other spouse's ability to pay (2030(a)(2)). For ability to pay, factors include assets and earning capacity. A court has broad discretion in awarding fees and is reviewed only for a clear showing of abuse (i.e. no reasonable judge would have made the order). Because Husband did not provide a trial transcript, the Court of Appeal could not find that the trial court abused its discretion.

Husband next appeals the order which terminated marital status, arguing that a stay had been imposed on the case pending appeal of prior orders. He also argues that, prior to terminating status, the court was required to insure that he had legal representation as well as medical insurance.

Wife filed her order to show cause (OSC) for bifurcation and termination of status pursuant to section 2337, citing irreconcilable differences. The matter had been pending for two years and appeals were still pending. Husband filed an opposition, aruging that the court did not have jurisdiction. He also requested attorneys fees. The trial court found that no income and expense declaration need to be filed with a request for bifurcation. Husband argued that a declaration was required under section 2337; he also renewed his request for attorneys fees, which the court denied. The trial court granted the termination of status, after wife promised that husband's medical insurance would not be cut off.

The Court of Appeal holds that an attorney fee and costs denial pending final disposition of the dissolution action is collateral to the main action and, thus, does not stay the remainder of the case. Although an order granting termination of the marriage is immediately appealable, there is no evidence to show that the order was made in error. Section 2337(a) allows for early termination of status, prior to support and other financial issues having been decided. A spouse must present compelling reasons for denying a request to bifurcate and terminate. In this case, husband admitted that he did not want to remain married and wife promised to maintain his health insurance. Husband's claim that his ongoing illness was reason enough to deny the termination was rejected by the Court as it was irrelevant.

Finally, the fact that retirement and pension plans were not joined in the divorce action prior to status termination may have been an error; that issue was remanded for further review under section 2337.

The court's second denail of his request for attorneys fees was proper as Husband did not raise the issue properly in the trial court pursuant to section 2031(a)(1), which requires a noticed motion or OSC.

**NOT CITEABLE**

Labels: attorneys fees bifurcation, dissolution, divorce, early termination, health insurance, medical insurance, spousal support

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**

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**

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

**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

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

Issue: can past due support be waived where party agrees to pay only fraction of what is owed and there is no bona fide dispute as to amount due? Held: No

Parties divorced in 1990's. In a post-divorce proceeding, court ordered child support, alimony, health insurance coverage plus half of all the child's uninsured medicals. Father moved to Japan and did not pay. Mother hired a collection agency in Japan. In 2003, Husband offers settlement agreement for $100,000 (1/3 of amount due) plus waiver of future support. Father failed to pay the $100,000 within 30 days as required by the agreement- mother did not receive payment for 18 months. Recently, CSSD (California Child Support Services) filed a motion to determine whether father owned back support payments for the remaining $200,000+.

Father argued that all issues had been resolved under the 2003 agreement between the parties. Wife claims that she signed the agreement only because she was desperate and under duress (child had been abducted by a pedophile and mother needed money to send her to therapy) and that agreement was void as father failed to pay within 30 days as agreed.

Trial court found that the agreement was too vague, ambiguous and unclear.

HELD: Family Code, section 3651(c)(1) states that a support order cannot be modified or terminated as to support that was past due before the date the motion or OSC to modify or terminate was filed. This applies even if the order was based on an agreement between the parties. It also applies to accrued interest. Further, an accord and satisfaction requires a bona fide dispute concerning the amount of debt owed. Here there was none.

As to the waiver of future support, wife argues that the waiver is ineffective because the money was not paid within 30 days. Absent a statement of decision, an appellate court will presume the trial court found every fact necessary to support its decision. Here, substantial evidence supports the implied findings of the trial court. Since the payment within 30 days was a material term, the entire agreement is void.

Case: Sabine M. v. Toshio M.
Court: Los Angeles County Superior Court
Judge: Commr. Dennis Carroll

Labels: CSSD, divorce, past alimony, past child support

During discovery in a divorce action, husband failed to disclose all separate and community assets held by him. Wife filed an application for monetary sactions against husband for violating his fiduciary duty to make financial disclosures to wife during divorce proceedings as well as attorneys fees based on Family Code, section 1101(g), section 2107(c) and 271(a). Collectively, these family code sections give the trial court power to sanction and impose attorneys fees for breach of spouse's fiduciary duty to disclose and for conduct which frustrates the policy of promoting settlement. Trial court ordered husband to pay $250,000 to wife as sanctions, in addition to $140,000 for wife's attorneys fees. Trial court found that husband intentionally sought to circumvent the disclose process and that his conduct frustrated the policy of promoting settlement. Husband appeals. Held: sanctions and attorneys fees properly imposed.

Family Code, section 721 declares that spouses must make full disclosure of all material facts and information regarding the existence, characterization, and valuation of all assets and provide equal access to information. This duty persists until each asset has been divided by the trial court. Section 2100(c) mandates full disclosure of all assets and liabilities of each party in the early stages of a divorce proceeding, regardless of whether party believes them to be community or separate property. The information must also be updated should changes occur. Parties are required to exchange a preliminary and final declaration of disclosure (Fam. Code, 2103)

In order to deter repeated non-disclosure, Family Code, section 2107(c) requires the trial court to sanction a party and award reasonable attorneys fees for failure to comply with disclosure obligations unless the failure is justified or sanctions would be unjust. Attorneys fees can also be awarded under section 271 if the party's conduct has frustrated the policy of promoting settlement.

The appellate court held that no harm must be shown by wife in order to be awarded sanctions; the purpose of sanctions is to force compliance with the disclosure laws and promote settlement. The Court further finds that imposition of sanctions does not first require wife to ask for husband again for the information or bring a motion to compel.

Case: Marriage of Feldman
Court: San Diego County

Labels: community property, divorce, financial disclosures, hiding assets

The Sixth District of the California Court of Appeal recently issued this unpublished opinion regarding modification of child support.

Following the divorce of husband and wife, husband was ordered to pay $1200 per month in child support for the couple's two children. At the modification hearing on wife's subsequent OSC for $5,000 per month, wife testified that she was not employed, a change from her previous circumstance of part-time employment with imputed income of $1760. Husband testified that he now earned $6000 per month, had $40,000 from an inheritance and some money left from his $150,000 share of the value of the family home. Husband also argued that wife was not disclosing all of her assets.

The trial court found no change in circumstances regarding imputed income for the wife, but did increase the income attributable to husband. The court increased the child support order to just under $1500 per month and found that the wife had not fully disclosed her income and assets.

Wife appealed the order as it was far less than the $5000 she requested. The Appellate Court upheld the lower court ruling, declaring that a parent seeking a modification of a support order must show evidence of a change in circumstances and wife had not met this burden.

Case: Winter v. Dokonal
Court: Santa Clara County
NOT PUBLISHED

Labels: change of circumstances, child support, divorce, imputed income

In this unpublished Second Appellate District opinion, the Court finds for appellant/defendant law firm and determines that its special motion to strike (anti-SLAPP) pursuant to Code of Civil Procedure, section 425.16 should have been granted.

In a divorce action, wife hired the defendant law firm to represent her in Los Angeles Superior Court. Wife revealed to her attorneys that, although it rightfully belonged to her and husband, the family home was actually held in the name of husband's parents and provided evidence in support of her contention. Her attorneys then filed a constructive trust action against husband's parents and joined them in the dissolution action so that wife could gain control of the community property family home. Although the parents' attorney insisted that the property rightfully belonged to parents, wife's attorneys continued with the constructive trust action through wife's deposition and exchange of documents. Upon review of the documents provided by parents, wife's attorneys promptly dismissed the action against the parents.

The parents subsequently sued wife's attorneys for malicious prosecution. The attorneys, the Gould-Saltman Law Offices, filed an special motion to strike (anti-SLAPP) the Complaint, which was denied in the trial court, arguing that the parents would not be able to prevail on their malicious prosecution claim.

The Court of Appeal finds that the parents failed to show that there was no probable cause to bring the constructive trust action and failed to show the existence of malice on the part of the attorneys. First, for probable cause, the parents had to show that there was no probable cause to bring the action or that the attorneys continued to prosecute the case after they discovered that there was no probable cause. The Court finds that the attorneys' reliance on their client's statements (wife) was enough for a findng of probable cause and that the complaint was dismissed in a sufficient amount of time upon discovering that the action lacked merit. The Court also failed to find malice in the aforementioned conduct.

Of note, however, is the Court's determination that this constructive trust joinder action against a spouse's parents does not amount to a family law motion or OSC, which would be protected from a subsequent malicious prosecution claim under Bidna v. Rosen (1993) 19 Cal.App.4th 27.

Case: Budilo v. Gould-Saltman Law Offices
Court: Los Angeles
Judge: Stern

UNPUBLISHED OPINION / DO NOT CITE

Labels: anti-slapp, community property, constructive trust, dissolution, divorce, joinder, malicious prosecution

In this unpublished opinion by the Second District California Court of Appeal, the court affirms an order awarding temporary child and spousal support (alimony) and attorneys fees made by the Los Angeles Superior Court in a divorce case.

In August 2001, husband filed for legal separation and wife filed a response. In March 2004, wife filed an amended response requesting a divorce rather than a separation. The parties disagreed as to the date of their physical separation.

In June 2005, wife filed an order to show cause (OSC) requesting guideline alimony and an attorneys fees award for $5000. She stated that the parties had reconciled in June 2002 and finally separated in October 2003 due to domestic violence. She also stated that husband used community funds to put a down-payment on the family home in which he now lived. She also stated that husband had cut her and their three children off financially. She received public assistance until the court ordred husband to pay $1300 a month back in September 2004.

In July 2005, husband filed an order to show cause (OSC) requesting modification of child support and seeking to have income of $30,000 per year imputed to wife based on a vocational assessment. Child Support Services Department (DCSS) opposed this request.

Husband listed his monthly salary at $4800 and stated that he had a mortgage, car payment and various credit card debts. He stated that he could not afford to pay alimony or attorney fees. He further claimed that he purchased the home with the parties were separated.

In August 2005, the trial court declined to impute additional income to wife above her stated $658 per month, finding that she had used reasonable efforts to become better employed. The court ordered husband to pay guideline support of $1,772 for the three children and $200 per month in alimony. The court based this spousal support order on a variety of factors including that the parties had been married for 10 years, had been middle-class, that husband lives in the family home, and that he was found guilty of spousal abuse. The court futher ordered husband to pay $5000 for wife's legal fees as he had the greater ability to pay and had control of the community property asset.

The appellate court upheld the low court ruling, finding that there were no discretionary factors present under which the court could deviate from the guideline child support amount pursuant to Family Code, section 4055. As to alimony, the Appellate court found no error as wife had no ability to maintain the marital lifestyle, was a victim of husband's domestic violence, and husband was sitting on the major asset (house). As to attorneys fees, husband presented no evidence that he was unable to borrow the money to pay the award.

Case: Washington v. Washington
Court: Los Angeles
Judge: Frederick Shaller
NOT PUBLISHED

Labels: attorneys fees award, divorce, temporary support

In this unpublished opinion by California's Second Appellate District the Court is asked to determine the starting date for interest on child support arrearages. Wife appealed the trial court's ruling that interest began to accrue from the date of the arrearages order and argued that the interest should accrue at the time each child support payment was initially due pursuant to Code of Civil Procedure, section 685.020(b).

The Court of Appeal held that unpaid child support arising from an initial support order (as opposed to an order for arrearages) is treated like an installment payment judgment and interest accrues when each payment comes due. Family Code, section 155. Courts have no authority to waive or forgive interest accrued on past-due child support amounts. Thus, husband is liable for interest measured from the date each child support payment was originally due, not from when the arrearages order was made.

Case: Marriage of Richardson
Court: Los Angeles
Trial judge: Commissioner Veasey
NOT PUBLISHED IN OFFICIAL REPORTS

Labels: arrearages, child support, divorce, interest, unpublished, veasey

A recent decision by the California Court of Appeal, First District, overturned a Sonoma County trial court ruling which had reduced, and then tapered, the amount spousal support a wife had been receiving since the parties' divorce. The wife had initially declared that she would become a school teacher but instead became a real estate agent. In reducing, then ending, the spousal support amount, the trial court relied on the length of the marriage, her favorable earnings outlook, and the fact that she had received significant community property assets that she had failed to save.

However, the Appellate Court found this marriage of twenty (20) years was of "long duration" pursuant to Family Code, section 4336 and, thus, is not subject to the Family Code, section 4320(l) goal that a supported spouse become self-supporting within a reasonable time (generally, one-half the length of the marriage).

The Court also found her earnings outlook to be less than what the trial court had determined it to be.

Finally, the Court found the wife's lack of savings from her community property share should not be imputed against her as she was not asking for a support payment above the amount of support she received while she was also receiving community property payments.

However, the Court rejected the wife's assertion that there had been no material change in circumstances that would warrant a review of support as the wife's decision to abandon her stated career choice and take a different path, a path which enabled her to find employment and earn money, was a material change.

Case: Marriage of West
Court: Sonoma
Trial Judge: Bertoli

Labels: alimony, change of circumstances, divorce, spousal support

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

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