Recent Blog Posts

2020 Legislative Changes to California Family Code

Law Office of Thurman W. Arnold — Tue, 31 Mar 2020 17:05:00 GMT

We've Updated our California Family Code Statutes Page for 2020!

As many of your know, since 2011 we've provided free access to various Family Code and other California statutes that are relevant to family law proceedings, along with important Rules of Court that also apply. We've also provided commentary on many of them, with links to Blog Articles that Michael Peterson and I have authored. Its a pretty time intensive effort given that our day job involves a very busy family law litigation, mediation, and Second Opinion practice. Given that, I tend to layer in materials on our website as I can, and then struggle not to burn out on the whole thing - as I confess I have regarding new blogs (sorry!).

But the only good that comes for me from the coronavirus epidemic is that it allows me time to come back to the Enlightened Divorce Blog, and to tweak and update our cite. I get so many lovely emails about how people find it, and it is our honor to maintain it.

This year scores of Family Code provisions have changed, many just slightly to reflect the new gender neutral rules regarding speech. It is high time that the Family Code has been freed or all his references to spouses and "he and she". Other changes strike me as silly, and I'll comment about that later (if I feel it is safe to do so).

So, for this round I want you to know that I believe that every one of our 400 plus statutes or the Family Code pages are current, so that they can be safely read, copied, and pasted into your briefs or other filings. There are some new statutes this year, including some that need to be added to our Statute's page, and I will circle back to them in the coming days. More to come!

As always, be safe out there!

Also, Michael Peterson and I remain available for Second Opinion consults, particularly as the courts remained effectively closed. These are offered at rates significantly less than what we charge for litigated cases.

Thurman W. Arnold, III

Child Custody Exchanges, COVID-19, and Shelter In Place in California: Custody and Visitation Disputes in Age of Coronavirus

Michael C. Peterson, CFLS — Tue, 31 Mar 2020 14:15:00 GMT

Child Custody Disputes, Child Exchanges, COVID-19,
and Shelter In Place Orders: Some Pointers

By: Michael C. Peterson, CFLS

Date: March 31, 2020

I have a wave of past and present clients contacting me about exchanging their children per existing custody orders in light of governmental ‘shelter in place’ responses to coronavirus/COVID-19. I have read some of the articles available from CNN, Time, People Magazine, and my colleagues in California and other states on the topic of child custody, exchanges, and the pandemic. Unfortunately, many of the articles I have reviewed seem to be vague, dated, and watered-down. Moreover, the judicial authorities in most states across the country are not making clear advisements to the public about whether ‘shelter in place’ executive orders or pre-existing judicial child custody orders should be followed. On March 25 the Texas Supreme Court weighed in for the citizens of that state, advising the public to continue exchanging children between households (i.e. that custody orders trump ‘shelter in place’ orders).

Anecdotally, any elementary school teacher knows that little kids are basically germ and virus incubators, and many children do not adhere to the prevention methods for spreading viruses (not touching face/picking nose, covering mouths for coughing and sneezing, wiping body fluids on clothing, and washing hands multiple times per day - indeed, it seems to delight many children to cough into their parents' mouths). Having children in the home in proximity to grandparents is much like being quarantined on the "Disaster Princess" off Japan last month. I suspect that exchanging children between households is probably a significant factor in the spread of COVID-19 in Asia, Europe, and the United States to-date.

What do you think - is this the appropriate response the existence of an exponentially-growing and very lethal pandemic? Your answer may depend on whether the other parent has 'possession' of the kids, or whether you have. It is a tough dilemma, especially where the parent who has the children and whom refuses to let them visit in person refuses to facilitate digital forms of communication in the interim.

In my opinion and in light of the policy function being served by ‘shelter in place’, for the time being the practice of exchanging children pursuant to existing custody orders needs to be significantly curtailed, to protect both the individuals involved and connected to such children, and to protect society and the general population. The current numbers reported by experts through the press are that, if ‘shelter in place’ immediately goes into place nationwide (i.e. in all 50 states) and is strictly adhered to by most all people, the number of deaths directly from coronavirus in the United States will be between 100,000 and 250,000, but if not then the number of deaths could reach over 1,000,000. This does not even take into account the potential for unknown and long-term health problems for survivors of COVID-19 infections. However, hopefully this is a very short-term problem. One problem is that a certain percentage of the custody order population will seize upon these risks, and interfere with custody sharing, for reasons not related to the best interest of children.

My general approach is to advise clients as follows:

1. All other things being equal (but see risk factors, below), communicate frequently and try to work out an agreement with the other parent that the child(ren) stay(s) with the parent who is the primary/majority time parent, not exchange, agree to daily ‘media contacts’ like Zoom, Skype, telephone, etc., and agree to ‘make up’ time when ‘shelter in place’ is over. For extremely enlightened folks, there is also the option of sheltering in place together. For high-conflict parents, it is good idea to document everything from your efforts to come to an agreement and discussions of risk factors in writing with the other parent (texts, emails, talkingparents.com, etc.), and assume that a judge will be reading those written communications in the near future before you push that send button.
In a time of panic and claustrophobia, be sensible!

2. Consider and communicate with the other parent about risk factors like:

Does one parent work in health care? If so, children should probably stay with the other parent.
Does one parent continue to work at their office/outside of the home? And does that parent come into frequent contact with many members of the public? Parents who are police officers, grocery store workers, airport employees, and the like present a higher risk of contracting and passing on coronavirus, and children should probably stay with the other parent.
Does one parent have other household members who are at heightened risk (i.e. the elderly, those with compromised immune and respiratory systems)? If so, children should probably stay with the other parent.
Has one parent has been violating the ‘shelter in place’ orders individually and/or with the children (e.g. kids telling one parent that the other parent takes them to the store, takes them for small play dates with other children, etc.)? If so, children should probably stay with the non-violating parent.
If there is a substantial difference, which parent lives in high population density areas/structures and which parent lives in low population density area/structure (i.e. large metropolitan areas compared to towns, towns compared to rural/country settings, and single-family homes compared to apartment buildings)? If so, children should probably stay with the parent in living in an area/structure of the lower population density.
Even if the parents, to-date, have been exchanging/sharing since ‘shelter in place’ went into effect, this should be strongly reconsidered exchanging the child going forward until ‘shelter in place’ ends, because as the general population becomes more and more saturated with COVID-19 the risk of contraction/spread increases (probably in an exponential manner; this situation is one of a ‘lily pond scenario’ with the number of cases and deaths doubling every two, three or four days until the virus has run its course through society).

3. If you are unable to come to agreement, tensions escalate, and one parent refuses to exchange your child, it is likely that:

If the aggrieved parent contacts law enforcement, there is:

A very high probability that law enforcement will tell that parent it’s a civil matter that needs to go back to family court (which is technically untrue in California, because there is a statute, Penal Code 278.5, making it a misdemeanor to violate a custody order but for budgetary reasons DAs instruct law enforcement not to charge people with 278.5, and further such advisement is ironic in that courts, at least in San Bernardino and Riverside Counties, are closed except for ex parte/emergency matters in Family Law),
A lower probability that law enforcement would make a telephone call to the other parent advising/encouraging the exchange (as a show of authority in an effort have the violating parent come into compliance with the custody order),
A very low probability that law enforcement might actually go to the violating parent’s home to knock and request the child be exchanged (as a heightened show of authority), but
Almost no probability (unless a warrant issued by a judge exists directing law enforcement to take a child into the custody of law enforcement) that law enforcement will enter into the violating parent’s home, car, etc. and take the child by force.
Judges will not make an ex parte order (unless in connection with domestic violence) to change custody/parenting time (and/or issue a warrant to remove a child from a parent violating existing custody orders) in response to a violating parent’s good-faith believe that ‘shelter in place’ or other risk factors do/should prevent child exchanges.
When all this is over and the courts re-open (and they will be substantially clogged and back-ordered when they do), some judges might be tempted to giving violating parents a kind-of shorthand ‘pass’ for non-compliance with a custody order while ‘shelter in place’ is in effect (provided the violating parent is not using ‘shelter in place’ as a ‘sword rather than a shield’; i.e. there is not a substantial history of non-compliance with custody orders by the violating parent). However, it is more likely that judicial officers will take such matters on a case-by-case basis (so, again be reasonable and document your effort to communicate and come to an agreement with the other parent). It is impossible to predict how far the pendulum will swing in terms of the responses and reactions of our judicial officers to these issues and the choices that parents make during these difficult times, which may flood the family law courts in the immediate future (once they reopen), but virtually everyone who violates existing custody orders in favor of ‘shelter in place’ will claim (and most rightfully) they had no idea what the best decision was at the time of deciding how to respond to ‘shelter in place’, and so he or she hunkered down with the children as ordered.

I think that parents who have actual physical custody of the children who do not offer to Zoom or Skype or otherwise make the children available to the other parent consistently by telephone for substantial periods will be subject to negative consequences. Certainly, if the children are presently staying with you make a record of offering communication with children at all times to facilitate such contacts, mean it, and do it!

In light of the above considerations, some of my primary caretaking parents have asked me “well if we do not reach an agreement, should I just keep the child, then, over the protests of the other parent?” There are risks and rewards both to doing so, and to not doing so. By taking a stand and acting in compliance with the concept of ‘shelter in place’, but simultaneously violating the custody order by refusing to exchange, that parent does risk immediate and/or long-term litigation and negative consequences in Family Court (and incurring costs for hiring a lawyer, etc.), the possibility of new orders he or she does not like (changing primary custody and possibly even quasi-criminal contempt charges), and significantly harming the co-parenting relationship with the other parent (and even the involved children), but in doing so that parent is minimizing risk of coronavirus/COVID-19 spreading both in her or his household and in the public at-large. The inverse is true of risks and rewards for not complying with ‘shelter in place’ and continuing to exchange the children. If a parent chooses to no longer exchange without agreement, she or he has to know the risks and have the stomach (and possibly wallet) for a fight in the courts over the issue in the future.

The bottom line is we are in uncharted territory with coronavirus/COVID-19, ‘shelter in place’, and the impacts of same on custody orders. There is a strong policy of the law in California for both parents to enjoy frequent and continuing contacts with both parents, absent a very good reason not to do so (e.g. where one parent has a history of domestic violence, criminal behavior, and/or substance abuse/addiction). This policy is rooted in science (child psychological development), in general fairness, and in an effort to eliminate of gender bias in Family Law proceedings (i.e. favoring the gender of one parent as a kind of ‘default’ in terms of being the preferred custodial parent).

Coronavirus/COVID-19 represents a different problem not of the same kind/type as those reasons supporting the historic and deeply-engrained frequent and continuing contacts policy with both parents. COVID-19 has resulted in a strong, emergency health-based policy for people to socially distance themselves, and to have as little frequent contacts with others, to prevent the spread of the virus among individuals and the general population. This policy has been and will continue to be implemented by governors, county health officials, and even the President of the United States for the time being. Citizens will continue to be inundated with the message on news broadcasts, social media, and communications with friends and family. But this new policy is temporary and will only last so long as necessary. For the time being, people need to be prudent, exercise reasonable caution, and do what they can and must to stop the spread of the virus.

Please know that Mr. Arnold and I want to support you during these difficult times. We are both available for Second Opinion consultations from anywhere involving California Family Law issues, whether you already have counsel (we are discrete) or if you are self-represented. I tend to handle the custody side of the practice, while Mr. Arnold handles the financial/property side. Please feel free to set up a telephonic or Zoom meeting with us, and visit the link above! We do those consults at a reduced rate.

MCP

Marriage of Vaughn: Discharge of Debts in Bankruptcy During Divorce Does Not Waive Reimbursement Claims for the Spouse Stuck With the Tab

Law Office of Thurman W. Arnold — Sat, 17 Aug 2019 18:17:00 GMT

Marriage of Vaughn (2018) 29 Cal.App.5th 451:

Chapter 7 Debt Discharges Under Federal Law Do NOT Necessarily Include Reimbursement Claims That Exist Within a California Divorce, as Between the Spouses Themselves

I have a case that has been pending since 2012 - I came into it in 2016 - where my client, the H (a brave California fire-fighter Captain), was forced to file a Chapter 13 bankruptcy to repay approximately $250,000 in marital debt over 60 months (payments of $2,500 each and every month from his paycheck), after his former spouse filed a Chapter 7 proceeding once she filed the divorce proceeding, and so discharged her own financial responsibilities to the marital creditors, as between she and them. Under the federal bankruptcy laws as they appeared to exist prior to Marriage of Vaughn, certified for publication in November 2018, the W's bankruptcy discharge also extinguished any obligation on her part to repay any of what my client has and will be forced to pay under the term of his Chapter 13 plan.

11 U.S.C. section 523 sets forth the superseding federal law on what debts are, or are not, dischargeable in bankruptcy. Most family law attorneys are thoroughly family with section 523(a)(5), which expressly exempts from discharge "a domestic support obligation" - i.e., spousal support, alimony, or child support. However, section 523(a)(15) also exempts from discharge an obligation "to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit;...."

Until Vaughn, a Bankruptcy Appellate Panel decision from the Ninth Circuit appeared to interpret section 523(a)(15) to prohibit CA family law courts from permitting Epstein or other post-separation reimbursements from being recoverable in a divorce from the other spouse, where the chapter 7 spouse received her discharge before the the finalization of the divorce proceedings. That case is In Re Heilman, 430 B.R. 213 (9th Cir. BAP 2010).

I had been facing an attorney for the W in this case, who claimed Heilman cut off my client's rights to recover his chapter 13 payments towards what was indisputably community property debt that he was forced to assume upon the W's Chapter 7 bankruptcy, for the simple reason that he was also on the hook to the marital creditors and his earnings exceeded $150,000/year (and so he was not eligible for his own Chapter 7 discharge). Heilman on its face seemed to support that position. Fortunately for my client, their case went into stasis, and we now have a new decision that makes it clear that spouses who discharge their obligations in bankruptcy to third parties still owe the other spouse who didn't manage to dodge the debt bullet.

In Vaughn, the CA trial court ruled that the H's bankruptcy discharge in Chapter 7 did not operate to obliterate his obligation to reimburse W, as between themselves, of joint debts that she suffered as a result of the marriage and the ensuing divorce proceedings. In affirming the trial court, the Justices ruled: "We accordingly hold that a debt is nondischargeable pursuant to section 523(a)(15) if the nature of the debt is such that its discharge would directly and adversely impact the finances of the debtor’s spouse or former spouse...." [Underline added].

So if you have a case involving a bankruptcy proceeding, filed before or during the divorce, you now have authority for the proposition that the bankruptcy discharge that applies to third parties, i.e., the creditors, does not apply as between the spouses to deny a financially injured spouse the right to be reimbursed.

TWA

Attorney Fees in California Discovery Motions in Divorce and Family Law Cases - Ensuring an Even Playing Field

Thurman W. Arnold III, CFLS, AAML — Mon, 29 Jul 2019 00:48:00 GMT

Attorney's Fees and Sanctions In Discovery Motions in

California Family Law Proceedings

There is a common misconception by some family law attorneys, and bench officers, that equitable family law considerations of need and ability to pay are determinative to discovery motions made under the California Civil Discovery Act in terms of a court awarding, refusing to award, or reducing an award, for attorney fees and costs incurred in the course of motions to compel answers to discovery or further answers. Such awards are in the nature of a "sanction." This is unfortunate because it allows a litigant or attorney carte blanche to be obstructionist or uncooperative by refusing to provide discovery responses, which in turn hobbles the requesting party, at great expense to them.

Under the Code of Civil Procedure (CCP), attorneys fees as sanctions may be awarded for abuses of the discovery process. CCP section 2023.030 states "(a) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust." [Italics added].

Hence, under section 2023.030 the court may order sanctions for general discovery misconduct, but under the various sections dealing with production requests, interrogatories, and requests for admission the court "shall" issue such sanctions, unless the party against whom sanctions are requested acted with substantial justification or other circumstances would make sanctions unjust.

There is no provision for basing such a sanctions award on the parties' relative financial circumstances, as is common in family law proceedings, in the CCP. There is no requirement for submitting income or net worth statements, before determining what sanctions are "reasonable."

In family law proceedings, imposing such a requirement can result in a party who is forced to file such motions to absorb some or all of the legal costs of obtaining from the other side what they were entitled to, when and if they prevail on the motion to compel they've demonstrated they should not have been forced to go through the hassle and expense of filing a motion in the first place. Applying a needs' based analysis can end up encouraging discovery wars if the financial consequences incurred by the prevailing party are not fairly imposed on the resisting party. Yet this reality is often overlooked. The fact is that under the CCP, relative financial circumstances are generally irrelevant. Nothing in the Family Code or in the family law rules of court state that the CCP is to be applied any differently in family court matters.

Dividing marital property and setting support awards in California family law proceedings is a daunting task for the practitioner seeking to obtain the critical evidence to prove or defend against a claim, particularly because of the discovery gamesmanship that family law attorneys and litigants engage in, when attempting to hide the ball and so provide incomplete (or no) information that makes the orderly processing of these types of cases nigh possible. Lisa Bloom is a poster child for these kinds of Shenanigans.

Some family court judges unwittingly abet these abusers by failing to consider the amount of effort and attorney time that is required to obtain discovery from recalcitrant litigants and to provide adequate compensation to the attorneys, and their clients, that are forced to file motions to compel under the Discovery Act. If one cannot recover the costs of forcing the other side to be transparent and produce evidence before trial (or RFO hearing) that the requesting parties needs, then many family law litigants who cannot afford the costs of litigation will be forced into a trial or other adversarial hearing with inadequate preparation and backup, which will make it far more likely that they receive an unjust result. Unfortunately, many family court judges fail to award discovery sanctions in an amount that covers the cost of filing them, or in an amount that would deter further misconduct.

I want to be clear that discovery gamesmanship almost always favors the more economically powerful spouse, including Harvey Weinstein. In opposite-sex cases, this will – more often than not – disadvantage the woman. In same-sex cases, it will be the lower earner who suffers, unless he or she has access to funds. Either way, and whatever the permutation, it leads to unjust results. California family law statutes (including Family Code sections 721, 1100 et seq., and 2100 et seq.) demand transparency. Spouses are fiduciaries, each to the other, just like business partners. This includes whatever happens until the community property assets are determined by the court, and divided. Obtaining discovery is critical to the spouse who needs it, but if they cannot afford to force the issue - and particularly if the other side knows they will face no financial consequences for stonewalling, the system begins to break down.

Family Code sections 2030, 2031, and 2032 govern need-base attorney fee awards in family law cases. Unlike the CCP, these are not in the nature of "sanctions." These statutes require the court to look at the relative financial circumstances of the parties before ordering fees. They make no reference to fees as sanctions. The Family Code section that authorizes courts to award "sanctions" is section 271.

Motions to compel, whether in the famlaw or civil context, are outrageously expensive for the litigants and require a huge wind-up expense even before they may be filed. Civil Rule of Court 3.1345 mandates that:

"Format of discovery motions

(a) Separate statement required

Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion:

(1) To compel further responses to requests for admission;

(2) To compel further responses to interrogatories;

(3) To compel further responses to a demand for inspection of documents or tangible things;

(4) To compel answers at a deposition;

(5) To compel or to quash the production of documents or tangible things at a deposition;

(6) For medical examination over objection; and

(7) For issue or evidentiary sanctions.

(Subd (a) amended effective January 1, 2007; previously amended effective July 1, 1987, January 1, 1992, January 1, 1997, and July 1, 2001.)

(b) Separate statement not required

A separate statement is not required when no response has been provided to the request for discovery.

(Subd (b) adopted effective July 1, 2001.)

(c) Contents of separate statement

A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference. The separate statement must include-for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response, answer, or production is requested-the following:

(1) The text of the request, interrogatory, question, or inspection demand;

(2) The text of each response, answer, or objection, and any further responses or answers;

(3) A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute;

(4) If necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it;

(5) If the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth; and

(6) If the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document.

(Subd (c) amended effective January 1, 2007; previously repealed and adopted effective July 1, 2001.)

(d) Identification of interrogatories, demands, or requests

A motion concerning interrogatories, inspection demands, or admission requests must identify the interrogatories, demands, or requests by set and number."

These are called "meet and confer letters." This process is hugely burdensome, and highly time-consuming, for any litigant -- not to mention an "out-spouse."

Family Code section 210 reads:

“Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice and procedure in, proceedings under this code.”

This includes all statutes under the Discovery Act, including discovery-related motions, as well as the Evidence Code and any other statutes not expressly covered by the Family Code.

Indeed, in IRMO Boblitt (2014) 223 Cal.App.4th 1004, where a party claimed that the discovery cut-off in post-judgment proceedings did not apply to family law proceedings, the appellate court strictly applied the Discovery Act’s language to preclude a wife from obtaining critical discovery from the husband in a post-judgment proceeding, after the discovery cut-off rule set forth in the CCP had expired. It ignored the wife’s due process argument that without the post-judgment discovery the CCP did not allow, she would be deprived of due process to present her claims or otherwise defend herself. The appellate court ruled that

“Wife's due process argument is based on the assumption that she had the " right" to conduct discovery prior to the evidentiary hearing on husband's postjudgment motion to divide the proceeds from sale of the Hedge Avenue property. That assumption, in turn, appears to be based on the belief of wife's attorney that " in family law, [but] not in civil law, ... post-judgment motions act as a separate and individual case" for purposes of discovery. That belief is incorrect.

Section 210 of the Family Code provides that:

'[E]xcept to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally ... apply to, and constitute the rules of practice and procedure in, proceedings under this code.' (See also Cal. Rules of Court, rule 5.2(d); Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1354, 63 Cal.Rptr.3d 483, 163 P.3d 160 ["Although some informality and flexibility have been accepted in marital dissolution proceedings, such proceedings are [generally] governed by the same statutory rules of evidence and procedure that apply in other civil actions"].) No statute or rule of court exempts a marital dissolution proceeding from the application of the Civil Discovery Act (Code Civ. Proc., § 2016.010 et seq.). Accordingly, the provisions of the Civil Discovery Act — including those provisions that govern the time for completion of discovery (Code Civ. Proc., § 2024.010 et seq.) — apply to such proceedings. Under those provisions, discovery generally must be completed 'on or before the 30th day ... before the date initially set for the trial of the action' (id., § 2024.020, subd. (a), italics added) and, absent court order (or an agreement of the parties), ;continuance or postponement of the trial date does not operate to reopen discovery proceedings' (id., § 2024.020, subd. (b)).

Here, it appears the date initially set for trial of the action was February 8, 2007.... Thus, the discovery cutoff date was in January 2007, and discovery closed at that time by operation of law.

Wife does not point to, nor are we otherwise aware of, any provision that reopens discovery in a marital dissolution proceeding just because one of the parties has filed a postjudgment motion. The assertion of her attorney that " post-judgment motions act as a separate and individual case" for purposes of discovery finds no support in the law.”

Accordingly, it denied her the ability to conduct discovery under the strict terms of the civil Code of Civil Procedure as it related to such discovery. Because that was the outcome that the CCP requires in terms of the discovery cut-off."

The Boblitt outcome created a furor among the family law attorney community. The reason it did was the Court correctly interpreted the existing discovery statutes that apply to family law proceedings, under authority of the CCP. This directly led to the enactment of Family Code section 218, to correct this unjust result.

Family Code section 218 states:

“With respect to the ability to conduct formal discovery in family law proceedings, when a request for order or other motion is filed and served after entry of judgment, discovery shall automatically reopen as to the issues raised in the postjudgment pleadings currently before the court. The date initially set for trial of the action specified in subdivision (a) of Section 2024.020 of the Code of Civil Procedure shall mean the date the post-judgment proceeding is set for hearing on the motion or any continuance thereof, or evidentiary trial, whichever is later.”

The reason why this section of the Family Code – a new section – was required was exactly because the Civil Discovery Act applies and indeed controls discovery related applications within family law proceedings, per Family Code section 210.

However, most family law practitioners and many judges don’t get this in the context of motions to compel answers to interrogatories, to production demands, or to other forms of discovery in those proceedings. Instead, they seem to believe that some other, non-statutory, equitable rules apply to enforcing such motions, particularly as they relate to recovering the attorney fees that a party is forced to endure to enforce their discovery rights and obligations – which are mutual obligations. The attorneys argue, or the judges rule, on the motion costs based upon Family Code sections 2030 and section 2031 and not based upon what the Code of Civil Procedure requires. The Family Code sections are all based on need-based arguments. The Code of Civil Procedure discovery enforcement sections are not at all need-based; they instead each require that the prevailing party be order to be paid their “reasonable” attorney fees and costs incurred in connection with a Motion to Compel. But this gets lost in translation.

No one files an Income and Expense Declaration [Judicial Council Form FL-150] in a civil proceeding. In a civil proceeding involving attorney fees incurred for a Motion to Compel, need – and especially ability to pay – is not a relevant consideration. Yet, in family law proceedings discovery motions are only authorized under authority of the Discovery Act, unless one independently adds to the menu a “need’s based” argument under Family Code sections 2030 et seq. Needs” and “ability to pay” under the Family Code sections are irrelevant to the statutory sanctions mechanism of the Code of Civil Procedure.

Regarding general attorney fees requests/applications under the Family Code, Cal. Rules of Court, Rule 5.427 states as follows:

“Rule 5.427. Attorney's fees and costs

(a) Application

This rule applies to attorney's fees and costs based on financial need, as described in Family Code sections 2030, 2032, 3121, 3557, and 7605.

(b) Request

(1) Except as provided in Family Code section 2031(b), to request attorney's fees and costs, a party must complete, file and serve the following documents:

(A) Request for Order (form FL-300);

(B) Request for Attorney's Fees and Costs Attachment (form FL-319) or a comparable declaration that addresses the factors covered in form FL-319;

(D) A personal declaration in support of the request for attorney's fees and costs, either using Supporting Declaration for Attorney's Fees and Costs Attachment (form FL-158) or a comparable declaration that addresses the factors covered in form FL-158; and

(E) Any other papers relevant to the relief requested.

(2) The party requesting attorney's fees and costs must provide the court with sufficient information about the attorney's hourly billing rate; the nature of the litigation; the attorney's experience in the particular type of work demanded; the fees and costs incurred or anticipated; and why the requested fees and costs are just, necessary, and reasonable.

To respond to the request for attorney's fees and costs, a party must complete, file, and serve the following documents:

(1) Responsive Declaration to Request for Order (form FL-320);

(2) A current Income and Expense Declaration (form FL-150);

(3) A personal declaration responding to the request for attorney's fees and costs, either using Supporting Declaration for Attorney's Fees and Costs Attachment (form FL-158) or a comparable declaration that addresses the factors covered in form FL-158; and

(4) Any other papers relevant to the relief requested.

(d) Income and expense declaration

Both parties must complete, file, and serve a current Income and Expense Declaration (form FL-150). A Financial Statement (Simplified) (form FL-155) is not appropriate for use in proceedings to determine or modify attorney's fees and costs.

(1) "Current" is defined as being completed within the past three months, provided that no facts have changed. The form must be sufficiently completed to allow determination of the issues.

(2) When attorney's fees are requested by either party, the section on the Income and Expense Declaration (form FL-150) related to the amount in savings, credit union, certificates of deposit, and money market accounts must be fully completed, as well as the section related to the amount of attorney's fees incurred, currently owed, and the source of money used to pay such fees.

(e) Court findings and order

The court may make findings and orders regarding attorney's fees and costs by using Attorney's Fees and Costs Order Attachment (form FL-346). This form is an attachment to Findings and Order After Hearing (form FL-340), Judgment (form FL-180), and Judgment (Uniform Parentage-Custody and Support) (form FL-250).” [Italics added]."

A discovery motion under the Code of Civil Procedure Discovery Act rules is expressly not applicable to this rule – the Rule of Court is a need’s based rule, only. Motions relating to discovery abuses under the Discovery Act are not need’s-based. They are under the CCP. Relative financial circumstances, whether in terms of income stream or access of money, are expressly not relevant because the Rule makes it clear that it only addresses motions for fees under the Family Code.

Yet, family court judges and commissioners seem to think that they should apply what they view as equitable considerations based upon the relative financial circumstances of the parties – be it income-wise or asset-wise – in imposing the legal-fee consequences for having to make the motion.

There is no requirement whatsoever to submit anything under CRC rule 5.427, including an FL-150 Income and Expense Declaration - unless, arguably, Family Code section 271 sanctions are also requested in the motion to compel. By doing so you invite the court to look at the parties' relative financial circumstances, which a litigant may or may not want it to do. One thing is likely: To the extent that family law courts feel that relative financial circumstances play a role in determining sanctions awards for motions to compel, it will have a chilling affect on the ability of a party forced to file such a motion to recover the expenses for bringing it.

TWA: JULY 27, 2019

Good luck, out there!

2019 Amendments and Revisions to the California Family Code

Thurman W. Arnold, III CFLS, AAML — Sun, 20 Jan 2019 15:23:00 GMT

The 2019 Amendments/Revisions to the Family Code - Highlights!

Every year we try to review the changes to the California Family Code, along with related California Rules of Court and other statutes affecting family law proceedings. We have updated our Family Law Statutes Page, which is a portal with links to over 350 statutes and rules pertaining to California family law so that the information provided is current. (We offer commentary on many of those pages).

This year introduces HUGE changes to existing law in a number of areas. See the discussion below as to amended Family Code section 4325, for one example. The war on domestic violence is the big story for 2019, but there are other important changes and additions - including relating to a child's right be supported and to be free from abusive settings - as follows (and in no particular order):

Spousal Support and Domestic Violence

Family Code section 4320 - The 'Judgment Spousal Support Factors'. Family Code section is admittedly the most important and central spousal support statute in California (including with regard to the issuance of "temporary spousal support" orders, which also have significant impacts on applications relating to attorney fee awards. We have written elsewhere about that. Section 4320 has been amended to address factors relating to domestic violence. Subsection 4320(i) formerly required a family law court, when fixing spousal support, "(i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party." 4320(i) now reads:

"All documented evidence of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party's child, including, but not limited to, consideration of:

(1) A plea of nolo contendere.

(2) Emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party.

(3) Any history of violence against the supporting party by the supported party.

(4) Issuance of a protective order after a hearing pursuant to Section 6340.

(5) A finding by a court during the pendency of a divorce, separation, or child custody proceeding, or other proceeding under Division 10 (commencing with Section 6200), that the spouse has committed domestic violence."

These changes are significant, but mainly because they clarify that "no contest" orders in criminal cases can be considered (which most trial courts already do) and the section now states expressly that permanent restraining orders are to be considered (as prima facie) evidence affecting whether or not to award spousal support. It is tightening the screws on trial courts to refuse to award spousal support in cases where domestic violence, and clarifies that the court must consider ALL documented evidence of a history of DV. These rules will be applied to applications and RFOs for temporary spousal support!

Domestic Violence and Division of Interests in

Community Pension and Retirement Benefits

Family Code section 4325 - This spousal support statute, also dealing with the potential consequences of domestic violence, has likewise been amended to specify and tighten up what DV evidence should be considered by family courts in ordering, or declining to order, it. Moreover, it authorizes trial courts to award 100% of the community interest in a victim's pension to be awarded to the injured spouse.

This will be a game changer. It will certainly incentivize DV claims and litigation over them in a ton of new ways. This amendment deserves its own blog. While domestic violence in any form is to be deplored, unfortunately DV allegations have long been used and misused for strategic reasons relating to custody of children, control of the family residence, and to avoid potential support obligations. While section 4325 speaks in part to convictions of DV (which may have included a proof beyond a reasonable doubt evidence standard for cases that go to trial), it also continues language found in section 4320 and elsewhere about "documented evidence" of DV that often is found in the form of permanent DV restraining orders that only need to be established by a preponderance of the evidence. This makes resisting DV applications absolutely critical, particularly for those who are innocent of the charges!

Child Support Factors

Family Code section 4058 - This is core statute with big implications specifically for child support, but also in terms of defining gross income for purposes of spousal support. Subsection (b) has been rewritten. It used to say:

"The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children." It now reads:

"(b) The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children, taking into consideration the overall welfare and developmental needs of the children, and the time that parent spends with the children."

This appears to be a clarification of what factors the legislature considers to directly impact the best interests of a child for purposes of child support awards, and so wants family courts to consider.

Ending of Parental Duty to Support Children

Family Code section 3901 - Former law provided for the obligations of parents to support an unmarried children until the age of 18 years, or no later than the age of 19 so long as that child is a full-time high school student, whichever first occurs. The amendment excuses the child from being a full-time high school student after age 18 if the child has a medical condition documented by a physician that prevents full-time attendance.

Child Visitation Rights of Parents

Family Code section 3100 - This statute requires courts to grant reasonable visitation to parents, unless it is shown that would be detrimental to their best interests. It has been greatly expanded to help define what is detrimental to their best interests, particularly in the context of domestic violence orders. It provides much greater limitations to visitation in such instances. It also allows visitation orders to nonparents "having an interest in the welfare of the child." It also limits visitation orders in cases where temporary DV orders have issued, but have not been finally determined.

This is a very important change that is likely to make it much harder for domestic abusers to visit their children. It is essentially an expansion of the joint and sole custody restrictions set forth in Family Code section 3044, which has likewise been tightened as discussed below.

Family Code section 3011 - This is the critical "best interests of child" [BIC] statute, and therefore a very important revision of the Family Code. It requires courts to make the BIC determination consistent with specified findings, particularly relating to domestic violence.

Child Custody Presumptions and Domestic Violence

Family Code section 3044 - As any custody lawyer (and family court bench officer) will tell you, this is an extremely important statute for families where domestic violence has been established in terms of the rights of a perpetrator to have legal and physical custody, and visitation, with their children. Existing law establishes a rebuttable presumption that sole or joint custody should not be awarded to the perp who has been found to have committed domestic violence on anyone in the family within the past 5 years, and if the court finds the presumption has been rebutted the judge is required to specify what facts lead her to that conclusion.

The changes expand the presumption in situations involving DV against persons in other specified situations (outside the family unit at issue) and sets forth additional facts that the court must find before overcoming the presumption.

Pets as Property

Family Code section 2605 - "The Family Pet" statute. Many of us view our pets as little "people" akin to our children, and this new law both confirms and rejects that view. It rejects that view in specifically authorizing courts to award "ownership" of a pet animal in a judgment for dissolution or legal separation. Pets are property. It reinforces that view by authorizing courts to issue orders, prior to final determination of ownership of that property, "to require a party to care for the pet animal." [Italics added]. What is odd about this language is that it does not mention "visitation" - can it be used by a pet parent who affirmatively wants control of or part-time care of the beloved family dog? In terms of the strict wording the statute, only so if that parent is asking the court to require that they be ordered to care for the pet. What does the word "care" mean? It "includes, but is not limited to, the prevention of acts of harm or cruelty" and "the provision of food, water, veterinary care, and safe and protected shelter." Therefore, a pet parent hoping to use this statute to gain custody of the pet may find that it provides no such authority. Maybe trial courts will use the "not limited to" language to include visitation orders. Certainly, however, a pet parent can invoke this statute to force the other side not to harm the animal and to properly care for it until such time as that animal's owner is finally determined. There is no other California family law statute that specifically addresses pets (except in cases of domestic violence - see Family Code section 6320(b) and section 6320.5, including as in visitation, but in my experience courts have been issuing such orders for years without direct statutory authority. In any event, some news media have wrongly publicized the nothing that this is a pet custody/visitation statute - it isn't, at least until the final division of the community property under Family Code section 2550, at which time (and only at such time) a court can award joint ownership of the pet per subsection (b).

"Pet animal" is defined as any animal that is community property and kept as a "household pet". The legislature did not see fit to specify what constitutes the "household." Apparently our petly children may not include the goat or horse that is kept in the yard (or boarded elsewhere), or that pot belly pig unless it roams free within the home from time to time. Presumably, lizards and snakes, and birds, (not to mention dogs and cats) qualify but maybe you should move them from the garage into the house if you want want to avail yourself of these new rules.

I am not saying that this statute is not needed. But since "care" is defined in part by acts of animal cruelty as outlined in California Penal Code section 597, we now have a whole new landscape for nasty litigation and accusations involving "bad acts" similar to what is experienced in custody disputes on a daily basis. The good news is that in all my almost 37 years of family law practice, I've almost never seen a case where severe animal cruelty was alleged (I recently had a case where the W alleged that my client, the H, cruelly left the doggies in a crate for times during the day - that went nowhere).

Given that we reside in democratic republic of California, explicit rules relating to temporary custody and visitation of your pup are, I predict, just around the corner! Which is a good thing - we family lawyers and our clients need more things to litigate over! Seriously though, as a species we need to quit viewing living creatures as "things" and "property" but instead as sentient, emotional creatures. Stay tuned.

THIS IS NOT AN EXCLUSIVE LISTING OF ALL OF THE 2019 FAMILY CODE AMENDMENTS. In particular, almost all of the Uniform Parentage (paternity) statutes have been revised. We've updated those in our Statute's Page.

Good luck out there!

BTW, I took the picture of the young male Big Horn from my home.

Written Marital Transmutation Agreements and Family Code Section 2640

Michael C. Peterson — Wed, 19 Dec 2018 01:55:00 GMT

Family Code Section 852 Transmutation(s):

What Is It? Common Perils!

A Sample Transmutation Agreement for People Who Refuse to See Lawyers

By; Michael C. Peterson, CFLS

Some of our recent caseload has included litigation related to transmutation agreements, including those prepared by unrepresented spouses, or which were prepared by non-family law estate counsel on behalf of parties establishing joint living trusts and then, sometimes inevitably, the parties separate, file for divorce, and the one who is disadvantaged by the transmutation seeks to set it aside. They may indeed be successful. I would like to share some observations and pointers concerning them, and provide a very simple, but arguably legally sufficient, sample for those who will insist on avoiding the assistance competent legal counsel (and the admitted expense) and who might otherwise cobble together something that is guaranteed to be ineffectual.

In California a “transmutation” is a change in the legal characterization of assets or debts from community property to one spouse’s separate property estate, or from one spouse’s separate property estate to the community estate, or from one spouse’s separate property estate to the other spouse’s separate property estate. Family Code section 850(a), (b) & (c). In the absence of a transmutation, in dissolution proceedings property characterization is determined in light of the ‘default’ rules under the Family Code (e.g. the date of/source of acquisition rules found in Family Code section 760, et seq., for community property assets, Family Code section 770, et seq. for separate property assets, and Family Code section 900, et seq. for community debt).

Like common law Statute of Frauds rules involving contracts generally, valid transactions between spouses purporting to change the characterization of a particular asset or debt carry a heightened evidence requirement; the Legislature has recognized a state policy interest in requiring a writing in connection with transmutations to preserve judicial economy and avoid endless litigation about ‘pillow talk’ alleged promises between spouses that, at trial, often come down to ‘he-said/she-said’ stories, perjury with huge financial incentives, and character assassination by each party’s lawyer against the other party.

Unlike the common law Statute of Frauds, there are virtually no special circumstance implied exceptions (such as partial performance in reliance on an oral promise) to the California transmutation formal writing requirement under Family Code section 852(a), and appellate courts have continually recognized that this statute is to be strictly construed. Marriage of Benson (2005) 36 C4th 1096, 1100. One exception does exist as to gifts of small-item personal property such as clothing, jewelry, and other “articles or a personal nature” that do not have a substantial market value (i.e. that $20,000 anniversary ring is not exempt from the writing requirement if a wife wants to take the position that the husband verbally told her it would be hers alone). Family Code section 852(c). Another exception applies to pre-1985 transmutations.

Family Code section 852 governs the enforceability of a transmutation and states as follows:

“(a) A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.

(b) A transmutation of real property is not effective as to third parties without notice thereof unless recorded.

(c) This section does not apply to a gift between the spouses of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature that is used solely or principally by the spouse to whom the gift is made and that is not substantial in value taking into account the circumstances of the marriage.”

Hence, Family Code section 852 requires (in order to be valid and enforceable) that the spouses’ transmutation agreement: (1) be in writing, (2) be signed by the spouse whose interest is adversely affected, and (3) contain an express declaration that the characterization or ownership of the property is being changed.” Estate of MacDonald (1990) 51 C3d 262, 264. This third requirement is not to necessarily say that the writing need to have ‘lawyerly’ or ‘magic’ works about “community property” or “separate property” (although such words, correctly used, certainly help- see Marriage of Barneson (1999) 69 CA4th 583, 591 providing that a “… transmutation may be effected by means of a transfer, but a transfer is not necessarily a transmutation…”); the written and signed document needs to adequately evidence an intent to change the nature of the ownership and/or obligation of a particular asset or debt such that words like “give,” “grant,” “take” and “accept” can suffice. So be careful of what you write in that Christmas card to your significant other when referencing the new Rolex watch which the card accompanies; for that matter, be careful what you write in emails and text messages, which can possibly be construed as meeting the writing and signature requirements under existing case law in other contexts.

Transmutations may be undertaken for a number of reasons, and they also occur by operation of law and often inadvertently. For instance, deed transfers are transmutations that do not require a separate writing or agreement. For instance, spouse A owns the home they were awarded in their last divorce, and remarries spouse B. If spouse A then transfers title to that home to he and spouse B, to whom he will be married until death due them part, as “husband and wife (or husband, etc.) in joint tenancy” in order to create a right of survivorship that is automatic upon the death of either spouse, and so to avoid probate, spouse A has transmuted his formerly SP property into CP. That type of transmutation is typically intentional, but rarely does spouse A first seek advice about its legal effect. After all, he is sure this relationship will never end by divorce. Or, possibly the spouses refinance spouse A’s home during marriage to get better rates, or pull out money, and the other spouse’s income is needed to qualify for the loan, or maybe not and the escrow officer, as part of refi escrow, drafts a transfer deed from A to A&B because that is her habit, and spouse A is never told of its legal effect. And, there are times when spouse B badgers or fools spouse A into signing a transfer deed that include he or she. (Rules relating to fiduciary duties and presumptions of undue influence are discussed throughout our Blog).

Transmutations can also be undertaken in estate planning for tax basis reasons, where an estate lawyer prepares a written “transmutation agreement.” And sometimes the parties, for often naïve reasons or as a result of being pressured, simply want to gift some or all of their separate assets in a manner that makes it the joint property of both spouses. Not uncommonly, they draft their own – and then wind up in the lawyers’ offices litigating about it at great expense, and with highly variable outcomes.

Almost always when transmutations are involved, there is another important legal principal at play – that of Family Code section 2640 reimbursements; however, most transmutation agreements fail to consider and are silent regarding whether these reimbursements are to be retained or waived. Family code section 2640 states as follows:

“(a) ‘Contributions to the acquisition of property,’ as used in this section, include downpayments, payments for improvements, and payments that reduce the principal of a loan used to finance the purchase or improvement of the property but do not include payments of interest on the loan or payments made for maintenance, insurance, or taxation of the property.

(b) In the division of the community estate under this division, unless a party has made a written waiver of the right to reimbursement or has signed a writing that has the effect of a waiver, the party shall be reimbursed for the party's contributions to the acquisition of property of the community property estate to the extent the party traces the contributions to a separate property source. The amount reimbursed shall be without interest or adjustment for change in monetary values and may not exceed the net value of the property at the time of the division.

(c) A party shall be reimbursed for the party's separate property contributions to the acquisition of property of the other spouse's separate property estate during the marriage, unless there has been a transmutation in writing pursuant to Chapter 5 (commencing with Section 850) of Part 2 of Division 4, or a written waiver of the right to reimbursement. The amount reimbursed shall be without interest or adjustment for change in monetary values and may not exceed the net value of the property at the time of the division.”

Subsection (a) defines what are “contributions” to the acquisition of property (typically property that is acquired by spouses in joint title form, making the property a community assets).

The kicker is subsection (b), which is intended to reimburse a spouse for separate property funds or assets used to acquire, maintain (subject to limitations), and/or improve that community property, subject to documentary proof tracing to the separate funds or assets that were so used. Subsection (c) addresses what happens where SP of spouse A is contributed to the acquisition of what is the SP of spouse B.

We have written extensively, elsewhere, about Family Code section 2640 principles and their application. As an illustration of the application of Family code section 2640(a) and (b), consider the following hypothetical situations. In 2018 husband and wife purchase a house for $100,000, putting $10,000 of community money down and paying the mortgage for the next five years at $10,000 per year. At the beginning of year six, wife receives a $50,000 inheritance from her dear Aunt Edna and applies this money to the remainder/entirety of the mortgage on the house. In year ten the parties file for divorce and the court orders the house sold and the net sale proceeds to be held by the husband’s attorney in his client trust account pending further division orders. The house is sold for $210,000, and the net sale proceeds after paying the realtors and escrow company is $200,000. In this hypothetical and assuming effective tracing documentary evidence exists concerning the wife’s application of her inheritance money to the house, she would receive the first $50,000 off the top of the net sale proceeds, and the remainder of $150,000 (representing both the $50,000 pay down of the mortgage in monthly increments over the first five years and $100,000 in appreciation over the ten-year purchase period) would be equally divided between the parties as being community in character.

What I want to discuss in this Blog in the transmutation context is the effect of the language in subsection (b), to wit: “unless a party has made a written waiver of the right to reimbursement or has signed a writing that has the effect of a waiver…” in the transmutation context as consideration of that language is usually entirely overlooked – with the consequence that even where a transmutation is valid and enforceable, 2640 reimbursements continue to be in play. If that is your intention, fine. But we find that where written transmutation agreements are entered into (as opposed to those that occur, for instance, by operation of law), unrepresented parties fail to consider them.

Our office recently had a bifurcated over the enforceability of a written transmutation that was prepared by an estate attorney in connection with the parties’ estate plan. The couple were married for 40 years. For most of those years, H was the exclusive bread winner and made good money. W’s mother was very wealthy, and the parties knew that upon her death, W would inherit several million dollars. Accordingly, they spent what H earned hand over foot, and essentially saved nothing. W repeatedly promised H that the money she would inherit would fund their twilight years. W’s mother, however, stubbornly refused to move into the Great Beyond and lived for much longer than the couple anticipated. Finally though, Mom did pass and W inherited the money, which without more was indisputably her separate property per Family Code section 770. The funds were immediately placed into a joint account, and over the next few years it was used to acquire and pay for all manner of things, including three jointly titled homes (think transmutation), gifts to the parties’ respective kids, and a very comfortable lifestyle. The oral agreement between the parties, which W pretty much admitted, was that the money belonged to and would be used to benefit them both. Except … transmutations must be in writing per section 852(a).

One day the parties (aged in their 70s) visited an aging estate lawyer in Orange County to prepare a trust estate document, so that each would be provided for upon the earlier death of the other. In connection with those documents, and supposedly in consultation with the parties, that estate attorney also prepared a written “Transmutation Agreement.” [“TA”]. Evidently this was intended to memorialize the promise and understanding between the parties that the inheritance now belonged to them both. While he may have been competent to draft a simple trust, he had only prepared a few TAs in his 40 odd years of practice. This one page document was filled with spelling errors (including the even the title “Transmutution," and a sentence that the parties understood they had the right to seek the advice of independent “council”). W disavowed the TA and claimed she did not know its legal import when she signed it, and that the TA came to be as a result of H’s plan to unduly influence her and get her to gift half of Mom’s money to him. And, suffice it say, the TA made no reference whatever to what would happen with W’s 2640 reimbursements, and did not mention the section or contain any other language that could be considered to constitute an express waiver of the SP reimbursement W was otherwise entitled to. Of course, the drafting attorney had never heard of section 2640 because he was not a family law attorney, or had slept during his continuing ed. Which means that even had the TA ultimately been found to be valid, 100% of Ws inheritance contributions to the acquisition of the three homes would have to first be reimbursed to her before the remaining appreciation in them (not much) would be equally divided, because that much was CP (again, because the property was acquired during marriage and in joint title form even though with SP funds).

To the extent that once upon a time, when the TA was signed, W really had intended that Mom’s money did belong to them because neither separation nor divorce were then in the air, this outcome was thoroughly avoidable. It doesn’t take all that much for a written TA to satisfy the section 852 formalities, or to expressly waive 2640 reimbursement under subsection (b).

Situations that we have encountered when unrepresented parties have attempted their own transmutation agreements, or incorrectly believed that oral promises to the same effect as a transmutation could be oral, and where some prior attorney did not know how to prepare even a basic one that would likely be held enforceable, got me thinking about drafting a form of transmutation agreement that would likely meet the strict provisions of Family Code section 852, but also as short as possible – for parties who for whatever silly reason do not want to involve lawyers - which I want to be clear is a very bad idea. There is, to be clear, no legal requirement that such an agreement be prepared by a lawyer (and, as demonstrated above, hiring some lawyers might just wind up making matters worse), or even that the parties consult with independent counsel (or that said lawyers also execute the document). The latter would be, however, the best practice. Expect to spend $1,500 each and on up (possibly much more) depending on the complexities of your situation. It is not uncommon to see lawyer mediators draft such a document, and then set forth therein that each party has been urged to seek independent counsel and has done so or elected not to have done so, and that they are fully informed of the legal consequences of executing the document.

I offer the following for highly simplistic illustration purposes only to you the self-represented reader, to use at your own risk. I really only do it because some people are going to draft their own, anyway, so at least I’d like to help improve (but not guarantee) their chances. My greater hope for you, however, if you are contemplating a transmutation agreement is that you consult an experienced Family Law attorney (preferably a Certified Family Law Specialist) draft your transmutation agreement. As always, the content of this Blog is entirely subject to our disclaimer!

THE MOUNT VERNON TRANSMUTATION AGREEMENT

The parties to this document entitled “Transmutation Agreement” (herein “Agreement”), husband George Washington (hereinafter “husband”) and wife Martha Washington (hereinafter “wife”), desire to enter into an immediately enforceable and binding contract between them to change the legal form and character in the characterization and ownership of certain asset(s) described in this Agreement.

Specifically, husband desires to change the characterization of his ancestral home, Mount Vernon, inherited by him from his father, from husband’s separate property to community property of his and his wife’s community estate, to be equally owned hereinafter by he and wife.

Further, husband expressly waives the reimbursement provisions of California Family Code section 2640, which would otherwise be available for him if for any reason the parties separate and dissolution or legal separation proceedings between them are initiated.

Husband and Wife each acknowledge that each stand in a fiduciary relationship with each other, that he and she freely and voluntarily enters into this agreement, and he and she acknowledge that he and she are under no form of duress or any other form of “undue influence” (as that term is used by California courts in determining the enforceability of any instrument purporting to be a written transmutation pursuant to California Family Code sections 850, 851, and 852, and case law thereunder) from or caused by wife or any third-party in so transmuting and so waiving as provided by this Agreement. Husband acknowledges that Wife’s prior and future years of devotion to him is legally sufficient consideration for him to enter into this Agreement. In addition, he wishes to assure that if he predeceases her, that she shall receive a 100% interest in and to Mount Vernon.

Husband makes this transmutation, and makes this express waiver of 2640 reimbursement, with full knowledge of all relevant facts relating to the characterization and ownership of the asset(s) being transmuted by this agreement, as well as having a complete understanding of the legal significance and legal consequences of so doing. Husband acknowledges having ample and adequate opportunity to consult with and to receive legal advice from any attorney of his choosing.

Wife accepts all rights and benefits derived from this Agreement and the application of its terms and provisions under the laws of the State of California, and so relies thereon.

Husband and wife intend and acknowledge that all statements of fact and statements of agreement provided herein are to be deemed conclusively true as between the parties and their successors in interest, pursuant to California Evidence Code section 622 which provides:

“The facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest; but this rule does not apply to the recital of a consideration.”

Husband and wife so agree, and so memorialize this agreement in this writing.

Dated: July 5, 1776 _____________________________

GEORGE WASHINGTON, Husband

Dated: July 5, 1776 ______________________________

MARTHA WASHINGTON, Wife

Notarized signatures, although not required by the above-referenced transmutation and reimbursement waiver law, are also a great idea.

As always, good luck out there!

MCP

Eavesdropping and Audio Recordings | Penal Code section 632's Exclusionary Rule in Family Law Proceedingss

Law Office of Thurman W. Arnold — Thu, 23 Aug 2018 02:31:00 GMT

Eavesdropping and Audio Recordings –

Penal Code section 632’s Exclusionary Rule in Family Law Proceedings

Introduction

Likely most of us have called into our cable provider or other like business communication interface and then to hear those magic words: “this call may be recorded for quality assurance purposes.” We've left voice-messages for others. We've texed each other, sometimes, ..., 'ugently.'

Most of us have made videos of family and friends doing fun life activities. These are normal, everyday occurrences, made easily accessible and available by modern digital technology. What is the family law "blow-back" when the shit hits the fan?

I have encountered fact patterns in my recent cases involving recorded statements and speaker-phone third-party witnesses that have caused me to prepare (and win) suppression motions. Most peoles's ever-increasing use of technology on a moment-to-moment basis (yes, we are becoming addicted to our cellular phones and these other devices) may make us more or less connected to each other, depending on one’s perspective,, but yet unaware of our legal rights.

Technology continues to spill over more into Family Law matters with the result often being more ‘truthful’ information, but arguably at the cost of privacy (also for better or worse, depending on perspective). In light of this practitioners and litigants should be aware of important authorities concerning some limits (and potential negative consequences) of eavesdropping with electronic devices and audio recordings. This article addresses these issues, and is my perspective.

Penal Code sections 631 and 632:

In 1988 and then again in 2016 the California Legislature re-wrote some very old law (going back to 1872) concerning public policy limitations in litigation proceedings to help protect the privacy of this State’s citizens. In particular, the Legislature modernized the wiretapping statute (Penal Code section 631) and the eavesdropping and audio-recording statute (Penal Code section 632).

In Family Law matters, technology still hasn’t quite progressed to make wiretapping a widespread or common issue, so this article does not address other than the reference, above. On the other hand, small and easily-concealable ‘smart’ phones give most everyone the ability to secretly video and audio-record anyone in their vicinity, and the ability to place an unwitting and unknowing person on the other end of the line on speaker phone such that third-parties to the phone call can hear what the person on the other end of the line is saying (and, potentially, these third-parties may be called upon act as witnesses against that person on the other end of the line).

Penal Code section 632 makes certain forms of evidence inadmissible in any proceeding (including Civil Law cases, and thereby Family Law cases) where the evidence was obtained in violation of the stature. Not only is such evidence inadmissible, the author(s) and co-conspirator(s) in the gathering such evidence can be charged with a misdemeanor crime under the statute. So, the stakes can be high. Under Penal Code section 637.2, there is also a civil tort for damages against a violator of the statute held by the victim whose privacy was illegally incurred-upon.

The elements of Penal Code section 632(a) are as follows:

A person intentionally
Uses an electronic amplifying or recording device
To listen to or record
A confidential communication via a device such as a telephone
Without either the knowledge or concerns of a party to the communication

Penal Code section 632(b) goes on to include agents, business entities, and other legal entities within the definition of the “person” element. Penal Code section 632(c) goes on to broadly define “confidential communication” as including “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto” but excluding statements made in public gatherings, during government proceedings, and “in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”

Some case law has emerged concerning the interpretation and scope of these elements, inclusions, and exclusions. But the case law is thin and is still fleshing out through our trial and appellate courts in California and on the federal level. To date we have reported decisions focusing on debt collection practices (see Kuschner v. Nationwide Credit, Inc., E.D.Cal.2009, 256 F.R.D. 684), persons in the custody of law enforcement (see People v. Chandler (App. 1 Dist. 1968) 68 Cal.Rptr. 645, 262 Cal.App.2d 350), and in criminal proceedings for recordings not excepted by the statute (i.e. lawfully by law enforcement; People v. Guzman (2017) 11 Cal.App.5th 184, Cal.Rptr.3d 509 – holding that Penal Code section 632’s exclusionary rule for evidence obtained as a result of recording a confidential communication without the consent of all parties was superseded to the extent it is invoked to suppress relevant evidence in a criminal proceeding under the ‘Right to Truth–in–Evidence,’ Cal. Const. Art. 1 section 28 of the California Constitution, and therefore was unconstitutional as-applied in that case).

Application in Family Law Proceedings:

One of the recent cases I encountered with implications under Penal Code section 632 involved a mother, while east of the Mississippi River, who allegedly made a suicidal threat and threat to harm her child while on the telephone with the father who was in California. Apparently, the father had put this call on speaker phone and either he himself or one of his family members audio-recorded the conversation. Subsequently, the mother moved to California and lived with the father for nearly two years without further incident.

The recording was the center-piece of the father’s case for primarily physical custody when the parties broke up and the mother sought an order to return to her home state with the child, and a restraining order against the father. During my meet and confer conversation with the father’s attorney, the day prior to the hearing, I learned of the audio recording. I immediately prepared a Motion in Limine to suppress the audio recording primarily on the grounds that it violated Penal Code section 632 (as well as objection to relevancy undue prejudice as the recorded statements allegedly occurred two years ago). Not only was the entirety of the recording suppressed, the Court stated to the litigants that it was a crime to have recorded the mother without her knowledge or consent (there was no ‘this call may be recorded’ warning given to the mother at the beginning of the recording).

The Court was correct both as to the recording itself, as well as the father placing the mother on speaker phone so that the father’s family member could record the statements on another device. Each of these acts, individually, were violations of Penal Code section 632, and both the father and the family member were co-conspirators with the other for each act. The evidence suppressed, the mother received her desired relocation back to her home state with the child, and she was very pleased.

Another recent case I encountered involved defending the father for statements he allegedly made threats of some vague harm to the mother during a telephone conversation. Mother sought a restraining order, the sole basis of which was this telephone conversation. The mother’s pleadings referenced that her aunt and uncle were present during the conversation, and implied they would be called to testify as to what the father had said (likely under an ‘admission-by-party-opponent’ exception to the hearsay exclusionary rule).

Of course, the only way the aunt and uncle could have known about the father’s statements was if he were on speaker phone or they were otherwise eavesdropping on the call (maybe the mother had her phone’s headset turned up so loudly that they could hear the father without the use of a loud speaker, and instead heard him over the tiny speaker in the phone). If the aunt and uncle simply overheard the conversation via the tiny speaker, there is an argument that the mother did not intentionally have them listen such that 632’s exclusionary rule did not apply. But otherwise, an electronic device was being used to amplify the father’s communication to the mother, it was not in a setting that would reasonably indicate to the father that his call was being eavesdropped, and the father did not actually know or consent to the aunt’s and uncles eavesdropping. As a result, the aunt’s and uncle’s testimony as to what the father said will likely be suppressed.

The more interesting question is whether the mother’s testimony as to what the father said will be suppressed as well, and as a result the mother’s restraining order case against the father will necessarily need to be dismissed because this telephone conversation was the sole basis of the mother’s allegations of abuse and there is no one remaining who can testify to the father’s words. I think there is a very good argument, supported by the language of Penal Code section 632, that the mother’s testimony also needs to be suppressed if she intended to put the father on speaker and have her aunt and uncle listen in. She is the person who authored this improper use of her electronic device, and Penal Code section 632(d) expressly states: “… evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section is not admissible in any judicial, administrative, legislative, or other proceeding.”

Suppressing all such evidence in a Family Law restraining order context does not seem to offend the ‘Right to Truth–in–Evidence’ provisions of Cal. Const. Art. 1 section 28 of the California Constitution and the holding of People v. Guzman because this context is not criminal in nature, and section 28 expressly deals with criminal acts. On the other hand, non-criminal contexts where abuse arises such as in Family Law proceedings have, at least, a criminal feel to them for proponents of the anti-abuse momentum present in our culture and law. But as a counter-argument to the anti-abuse momentum, Family Law restraining order proceedings have much less protections for the accused and are somewhat summary in nature because of the limited time periods for restraining order litigation to take place in, and the much lower standard of proof (preponderance) compared to the standard of proof for criminal proceedings (beyond a reasonable doubt). As such, I anticipate all of the mother’s evidence in the case where the aunt and uncle listened in to the phone call, including the mother’s own testimony as to what the father allegedly said, should correctly be suppressed under the plain meaning of Penal Code section 632(d)’s unqualified provision that evidence (meaning all evidence in in my reading of the statute) obtained in violation of its other provisions are inadmissible.

By: Michael C. Peterson, CFLS

Transfer Motions in California Divorce Proceedings Filed in the Middle of the Case for a Party's Convenience (or on Other Grounds) Cannot be Granted

Law Office of Thurman W. Arnold — Sat, 28 Jul 2018 00:35:00 GMT

Dear Reader:

I apologize for not providing updated materials on new and interesting topics involving California divorce for some moons, on our Enlightened Divorce Blog™. I've just been too preoccupied with the daily grind. But once in awhile something tweaks me from my Blog inactivity - like the scenario discussed in this article on a recent case - and drives me to send out a voice-call because I had to figure things out from scratch and I felt the need to help others to not get stuck in similar cul-de-sacs, when I realize I've maybe found the escape. This Blog article is on an obscure question, and I'd say don't read further unless you found yourself here because you have a venue change or a venue transfer issue. It is just food for thought.

People may file a divorce action in one county within California based upon their town of residency (or a child's residency), and then later one party may move to another location, for a whole host of reasons. This Blog does not addresse UCCJEA (Uniform Child Custody and Enforcement Jurisdiction Act) child custody circumstances. It is directed instead to the circumstances of parties of whatever gender who are married, who are struggling over property division and spousal support issues. Mike Peterson of our firm has addressed UCCJEA issues in other Blogs.

Custody and visitation issues aside, what will happen if one or both parties relocate to another jurisdiction, before the case is final and one party seeks to transfer the proceedings to a county and.or city that better suits their convenience over that of the other party, and particularly one who has moved out of state? This can be a big-time issue in terms of the costs of litigation, and the balance of power between divorce litigants. Imagine (if you can), that you've hired the lawyer of your dreams, but that you cannot afford that attorney's fees if they are forced to drive a hundred or more miles from where the case was initiallly filed. In my experience, sadly, power is abused by most parties (and/or their attorneys) whenever it militates in one sides favor, or the other.

With regard to transfer motions, either intra-county in large jurisdictions or between counties themselves, here are some thoughts about how to oppose a motion by the other side to transfer a case. I am riffing about a case that was filed in one California county initially filed (Riverside County) by my client, who has since moved away to another state, before the property divison and support rights between the parties was finalized.

The following is excerpted from our Points and Authorities filed in the case in opposition to the husband's motion to transfer the case from where it was filed, and he responded initially, to a place that now favors his convenience. He resides in Los Angeles Country, while the Wife lived primarily in Palm Springs when the case was filed over a year ago. Husband, at the time he filed his Response to the divorce Petition, did not argue or file any motion that the case should then be transferred to the Los Angeles courts. Recently she sold her local home and moved to Idaho.

Instead of H having contended the case should be transferred to his local courthouse based upon his primary residence address there, now 18 months into the case and after the parties agreed to sell the Palm Springs' residence and our client moved to Idaho, he wants to transfer the case from Indio to Chatsworth, L..A. County. Perhaps understandably. Neither party now lives in Riverside county. From our point of view, this would place Wife at a huge disadvantage because she would have to hire a new attorney in Los Angeles, and she would also need to hire a new forensic accountant to deal with business related issues who would not have to travel to L.A. after we'd retained some one local at the inception of the case, when no objection was then made by Husband to the case being heard in the Indio District of the Riverside County Superior Court. BTW, she is 65 and he is 71 years of age, and claims he is in poor health.

Opposing counsel filed a motion that (possibly) incorrectly assumes and argues that venue can be transferred at any time, and especially now that our client no longer lives in Riverside County (or California for that matter), based upon her client's convenience as a resident of Los Angeles County. I will come back and clean this Blog up in time, but in case someone else out there right now is facing a Motion to Change (Transfer) Venue in the middle of a pending divorce proceeding, here is how you would oppose it.

Bottom line: Parties to a divorce can only seek to transfer a case on the grounds of the witness convenience, before or when they filed their Response to the divorce Petition, or after a Judgment has been entered (for enforcement or other reasons, which often involved continuing disputes about children), within California where both parties have moved from that venue, but they cannot do so after the Respondent has appeared in the Petitioner's chosen jurisdiction, until the proceedings have concluded.

Respondent has filed an RFO to transfer the pending proceedings to Chatsworth Division of the Los Angeles County Superior Court on the grounds specified in Code of Civil Procedure Section 397(c) and (e), and upon Section 397.5.

1. Respondent’s motion cannot be granted as a matter of statutory law.

Proper venue, although it may be waived, is prescribed exclusively by statute (Code of Civil Procedure Section 392, et seq.); and so are the reasons for which venue may be transferred. Courts have no authority to create judicial exceptions to the statutes. See Forster v. Superior Court (1992) 11 Cal.App.4th 782, 789.

Section 396b establishes the “wrong court” ground for a motion to transfer, and specifically requires a motion be made by a respondent “at the time he or she answers, demurs, or moves to strike, or, at his or her option, without answering, ..., and within the time otherwise allowed to respond to the complaint, files with the clerk, a notice of motion for an order transferring the action or proceeding to the proper court,....” [Italics added]. Here, in filing his Response and not contesting venue or seeking a transfer for the reasons that he outlines in his declaration and Points and Authorities (that he was free to assert early last year), he has waived those grounds. Moreover; Respondent has never contended that Indio Branch of the Riverside County Superior Court was the “wrong” venue.

In the absence of the “wrong” venue ground addressed in Section 396b, Respondent could have filed a Section 397 application for the court to transfer the case on the discretionary grounds set forth therein. Once again, Respondent failed to make a timely application under Section 397 when he filed his Response, and so waived his right to attempt to do so before judgment is rendered in these proceedings.

Section 397 motions must also be made at the outset of the proceedings.

There is no statutory authority, in family law or civil proceedings, to transfer venue mid-stream during the proceedings prior to entry of judgment (see discussion concerning Section 397.5, below, which only addresses post-judgment transfer motions). That Section 397 only applies at the inception of a case and upon service is obvious from the language of the statute, which states in pertinent part: “The court may, on motion, change the place of trial in the following cases: (a) When the court designated in the complaint is not the proper court [i.e., where the Petition is filed in the wrong venue]. (b) When there is reason to believe that an impartial trial cannot be had therein. (c) When the convenience of witnesses and the ends of just would be promoted by the change. (d) When from any cause there is no judge of the court qualified to act. (e) When a proceeding for dissolution of marriage has been filed in the county in which the petitioner has been a resident for three months next preceding the commencement of the proceeding, and the respondent at the time of commencement of the proceeding is a resident of another county in this state, to the county of the respondent’s residence when the ends of just would be promoted thereby....”

2. Code of Civil Procedure Section 397.5 only applies to post-judgment modification or enforcement proceedings. Hogoboom & King, TRG: Family Law, at section 4:138 (“Another statute, applicable in dissolution, legal separation and nullity proceedings, permits a venue change to either party’s county or residence in postjudgment ... proceedings when it appears that both petitioner and respondent have moved from the county rendering the judgment and ‘the ends of justice and the convenience of the parties would be promoted by that change.’”) [Italics in orig]. Section 397.5 has no application to a proceeding in which judgment has not yet been rendered.

3. As a separate ground for objection, had the motion been timely it could not have been granted because Respondent failed to deposit the clerk’s costs and fees, as is explicitly mandated by Section 399, which states in pertinent part:

“.... If the transfer is sought on any ground specified in subdivision (b), (c), or (3) of Section 397, the costs and fees of the transfer, and of filing papers in the court to which the transfer is ordered, shall be paid at the time the notice of motion is filed by the party making the motion for the transfer....” [Italics added].

The reason for this rule is stated in Hogoboom & King, supra, section 3:578, as follows: “To avoid any delay if the motion is granted, defendant is required to post in advance (when filing the motion) the clerk’s costs and fees for transferring the action.” They point out that this rule also applies to motions made on the other statutory grounds, including Section 397.5. (Id., at section 5:562 and 562.1)

4. Respondent has not met the requirements of Section 397 in any event.

Assuming a motion is timely, the burden is on the moving party to establish whatever facts are needed to justify transfer. This requires declarations containing admissible evidence. To the extent that Respondent’s motion is based, as he states, on the convenience of witnesses and the ends of justice, under Section 397(c) Respondent has failed to make a proper and sufficient showing of the grounds for the transfer by competent and admissible evidence. Section 397(c) only addresses the convenience of third-party witnesses. Wrin v. Ohlandt (1931) 213 Cal. 158, 160.

A declaration supporting a motion to transfer a case on the grounds of witness convenience and the ends of justice must be supported by an extensive factual showing that includes at a minimum (a) the names of each nonparty witness; (b) the substance of their expected testimony; (c) whether the witness has been deposed or has given a statement regarding the facts of the case; (d) the reasons why it would be “inconvenient” for the witness to appear locally; (e) the reasons why the “ends of justice” would be promoted by the transfer to a different county. Juneau v. Juneau (1941) 45 Cal.App.2d 14, 16-17; Peiser v. Mettler, supra, at 607. Respondent has failed to address any of these required showings or to identify any witnesses at all, and on that basis the motion, had it been timely, must also be denied.

Under extraordinary circumstances and assuming a proper motion, the court may consider the convenience of a party under Section 397(c), but this is limited to cases where a party is extremely ill or feeble so that travel to a distant county would endanger his or her heath. See Simonian v. Simonian (1950) 97 Cal.App.2nd 68, 69. Here, Respondent has failed to allege anything beyond conclusions in his supporting declaration without the requisite contentions, AND he is not now entitled to bootstrap additional facts to which the Petitioner cannot respond in any Reply Declaration to this Motion. E.g., Peiser v. Mettler (1958) 50 Cal.2d 594, 607.

CONCLUSION

Respondent’s motion should be denied as a matter of law. Even had he filed a timely motion to transfer, his application would have failed to meet his burden for the reasons stated herein.

If you found this article through an Internet search, you or your client are presently dealing with this issue. There is an assumption out there among family law attorneys that if both parties move out of the county, or particular venue, during the pendency of the action that a change of venue must be granted to suit the convenience of the party who remains. This is not the law, but your trial judge may rule otherwise anyway.

An appeal may be your only remedy, but I thought you should know....

As always, good luck out there! And pigeon kisses!

TWA

How to Present Alzheimers' and Dementia Sufferers' Cases in Divorce Proceedings - Part 1 of a Series!

Thurman W. Arnold, III, CFLS, AAML — Fri, 08 Sep 2017 02:32:00 GMT

Spousal Support for Clients Suffering the Economic Ravages of Dementia.... And Related Issues

By T.W. Arnold, CFLS, AAML

"The bearers came to take me to my new

husband’s house, and I felt a joy all through my body

Instead the bearers have carried me into a deep forest

No one I know is here"[1]

Preface

This Blog arises from several cases I've encountered over the past few years in our Palm Springs based divorce practice. I've represented elders who suffered from dementia, and I've represented elders whose spouse was suffering the onset of this terrible condition, and its more disease and pain related incarnations. What surprised me at first to learn was the absolute dearth of guidance out there for legal professionals, in terms not only of practice guides and published appellate decisions, but also within the mental health community, about how to manage these cases in a litigation setting.

Neither Michael C. Peterson nor myself could find one officially reported case involving dementia suffering spouses in divorce, except as to whether an action brought by a person lacking mental capacity, or who lost same in the interim, can be maintained. This was shocking to me, but not surprising upon reflection. It is unlikely that a seriously impaired Alzheimer's spouse will survive until an appeal is decided, or much less have their interests best represented by continued litigation by their loved ones or caretakers. In any event, given the lack of direction in the popular literature and professional treatises on this subject, I've been forced to figure out the best way for my clients on my own. Which I prefer anyway.

There is a flood of these types of cases coming, as the statistics addressed below irrefutably predict.

My goal in this Blog is to provide brainstorming to legal professionals that might help them in promoting or resisting the claims that will arise for their clients in Alzheimer type cases, and to give some hope and guidance to the family member non-lawyers who will find this Blog on Google and the other search engines. This article is therefore a work in progress, and I will keep coming back to groom and layer it until I am satisfied with it. I will also spin off some related articles. If you find this article in September, 2017, please come back to review it in the ensuing months if the topic is important to you, or to your loved one.

Dementia and Its Impacts Upon Individuals and Couples In Divorce

Many family law attorneys have witnessed the challenges faced by elderly people suffering from dementia. Often our introduction began with our aging parents, or their siblings. These persons may have been our mothers, or fathers. As the statistics outlined below demonstrate, this disease-based extinction of self is more than an existential threat to each of us. It may be a matter of the odds. And its ravages are heartbreaking: Alzheimer’s disease is nothing if not intimately personal, and outrageously expensive.

Beyond our personal Universes, dementia has complex implications for matrimonial law. Increasingly our legal community will be asked to consider assisting clients with dementia-related difficulties who face the double whammy of the illness onset and a divorce spawned fiscal crisis. The economic consequences of an Alzheimer’s diagnosis are disastrous: It is, for a huge swath of the population aged 65 and beyond, the most expensive health care issue that elder people commonly face. In one study that examined the financial costs for Medicare beneficiaries who suffered from dementias for the five years before their deaths, the average overall total cost per decedent with dementia was $287,038, as compared to that for those who died of heart disease ($175,136), cancer ($173,383), or other causes ($197,286). The out of pocket costs for patients diagnosed with dementia amounted to $61,522, 81% higher than that for patients without dementia ($34,068).[2] These are median figures; individual costs can be much greater.

The number of dementia-disabled adults with cases pending in family law court will expand as the Baby Boomer cohort (born between 1946 and 1964) marches on. The number of Americans ages 65 and older is projected to more than double from 46 million today to over 98 million by 2060, and the 65-and-older age group’s share of the total population will rise to nearly 24 percent from 15 percent.[3] Among those aged 65 and older the divorce rate has roughly tripled since 1990, reaching six people per 1,000 married persons in 2015. Although these increasing rates leveled out in 2008[4], the statistics indisputably imply that more of such people, on either side of the aisle, will need our help.

For instance, in the United States 50% percent of first marriages, 67% of second, and 73% of third marriages reportedly end in divorce.[5] Some mental health professionals speculate this is explainable because there is less “glue” to stabilize second or later marriages that begin later in life, and imply that spouses in those situations may be more likely to ‘cut and run.’[6] This hypothesis appears to be more a conclusion of popular psychology than from peer-reviewed studies. Nonetheless, it is established that marriages that begin in later life do not appear to have the durability of those maintained over longer periods. As of 2015 more seniors were ending their marriages by divorce than through death. This has been dubbed “a gray divorce revolution”.[7]

Similarly, some authors suggest that the onset of a spouse’s serious illness itself increases the likelihood that a divorce will follow, and that these burdens tend to fall disproportionately upon women if they become ill.[8] They posit that women are more likely to care for a seriously disabled spouse, while men are not. If arguably true, the research also doesn’t yet prove that – but it does establish that women are much more likely than men, overall, to perform the role of caretaker to members of their family.[9]

It seems rational to suppose that the onset of Alzheimer’s itself may lead to premature divorce, particularly in 2^nd and 3^rd marriages or those of a short duration. Certainly some among us have had such conversations with aging clients or their non-spouse family members under these circumstances, where concerns were expressed about the costs of remaining married in light of an unexpected Alzheimer’s diagnosis and/or the high physical and emotional burdens of providing care to a dementia suffering spouse.

Since many of these divorces involve re-marriages that are undertaken just before or after retirement, a high percentage of them do not include substantial community property estates to divide for use to fund dementia and related care, and are not “long-term” marriages that provide much traction for traditional spousal support analysis purposes. It is not uncommon that these parties have separate estates of disparate value, that they enjoy low housing or other living expenses, and that even if relatively wealthy that they have lived frugally up to the point that one needs highly expensive personal care. To the extent that men continue to control a larger slice of the wealth of families than women, the vulnerability of this gender segment of the elder population will continue. How do we adequately address marital standard of living factors in such cases, where suddenly living expenses and “necessaries of life” increase radically as compared to pre-onset status quo?

I need to comment that there seems to be a dearth of data for same-sex couples, and for gay men in particular, and I apologize for the gendered and generalized tone of this article in its present incarnation. No disrespect or lack of sensitivity is intended. I will be back once I dig deeper to layer this out in future versions. Frankly, in the dementia settings I've encountered over my 35 plus years of practice, same-sex partners seemed to be more dedicated to their partners than opposite-sex couples when this awful disease struck, but that observation is hardly scientific or even reliable.

Dealing with cognitively impaired clients, or representing their spouses, raises questions about practice style and ethics for the attorneys on both sides of these elder divorce cases. For instance, perfectly appropriate procedural and evidence objections are especially potent as a means of thwarting property and support claims or to stonewall the process, since laying foundations and obtaining testimony from an Alzheimer’s affected witness may be practically impossible. If we represent a dementia sufferer, how do we present their cases when our chief evidence giver can no longer access personal knowledge? Using third party percipient witnesses (i.e., children) can be difficult particularly if the couple led a fairly insulated life, and accordingly there are often limited independent witnesses to fill in the blanks.

If we decide to undertake such cases we need to explore creative options to address the unique issues that arise in divorces where a spouse suffers from Alzheimer’s disease: The California Family Code (and the Evidence Code) make little or no specific provision for how to deal with the unusual circumstances posed by these cases. Not surprisingly given the condition and age of these litigants, few reported decisions have ruled upon these issues within the family law context. The trial court’s decision is usually final, one way or the other.

Section I of this article provides an overview of dementia and Alzheimer’s basics. This landscape includes a brief discussion of who it is that tends to suffer from this disability and when the onset typically begins, as well as about its progression, the types of care that are commonly available, the costs for the varietals of care, and the limits on what federal and state governments may contribute to and so mitigate the out of pocket payments for care, but not living expenses, that a spouse or the community or separate estate might generally be accessed.

Section II discusses strategies for obtaining temporary spousal support awards that are proportionate to the costs of dementia related care and associated living expenses, consistent with existing precedent, and also opposing such requests. Section II offers legal authorities for deviating from guideline support schedules. It contains a discussion about factors which negatively impact the length or amount of spousal support awards in temporary support cases generally, which might have out-sized consequences in elder dementia divorce, and it attempts to weave some arguments together in order to address these special circumstances for both sides in such disputes.

There is no dispute that Alzheimer’s is indeed a “disease,” a characterization that usually implies a status or process that someone does not choose, and cannot avoid. Larger societal questions exist over whether individuals or the State should subsidize the costs for victims of this disease, and if so for how long. Therefore, Section III raises issues of practical and philosophical concern, and opines about legislative changes that may be justified to anticipate a coming ALZ storm.

I. Overview of the Dementia/Alzheimer’s Basics

A. What is Alzheimer’s?

Alois Alzheimer (1964-1915) was a German neurologist who is credited with first identifying the disease in 1906. Dr. Alzheimer noticed changes in the brain tissue of a woman who had died of an unusual mental illness. Her symptoms included memory loss, language problems, and unpredictable behavior. After she died, he examined her brain and found many abnormal clumps (now called amyloid plaques) and tangled bundles of fibers (now called neurofibrillary, or tau, tangles). On that basis he developed a hypothesis that resonates today in a very large way. Current science concerning the etiology of Alzheimer’s disease is beyond the scope of this article, and probably not relevant to our task.

The National Institute on Aging (“NIA”), a division of the United States Department of Health and Human Services, describes the disease process as follows:

“Alzheimer’s … is an irreversible, progressive brain disorder that slowly destroys memory and thinking skills, and eventually the ability to carry out the simplest tasks…. Alzheimer's disease is currently ranked as the sixth leading cause of death in the United States, but recent estimates indicate that the disorder may rank third, just behind heart disease and cancer, as a cause of death for older people.”[10]

Whether Alzheimer’s is the 6^th leading case of death in the United States, or as other estimates suggest the 3^rd overall, the bean counters maintain that one in three seniors presently die from Alzheimer’s.[11] Therefore, for many death from old age equals death from this terrible disease.

Its “signs and symptoms” are described by the NIA:

“Memory problems are typically one of the first signs of cognitive impairment related to Alzheimer’s disease. Some people with memory problems have a condition called mild cognitive impairment (MCI). In MCI, people have more memory problems than normal for their age, but their symptoms do not interfere with their everyday lives. Movement difficulties and problems with the sense of smell have also been linked to MCI. Older people with MCI are at greater risk for developing Alzheimer's, but not all of them do. Some may even go back to normal cognition…. The first symptoms of Alzheimer's vary from person to person. For many, decline in non-memory aspects of cognition, such as word-finding, vision/spatial issues, and impaired reasoning or judgment, may signal the very early stages of Alzheimer’s disease.”[12]

The NIA classifies dementia type impairments as “mild,” “moderate,” and “severe.” In the mild stage, “Problems can include wandering and getting lost, trouble handling money and paying bills (citation omitted), repeating questions, taking longer to complete normal daily tasks, and personality and behavior changes.” In the moderate stage, “damage occurs in areas of the brain that control language, reasoning, sensory processing, and conscious thought. Memory loss and confusion grow worse, and people begin to have problems recognizing family and friends. They may be unable to learn new things, carry out multi-step tasks such as getting dressed, or cope with new situations. In addition, people at this stage may have hallucinations, delusions, and paranoia and may behave impulsively.”[13]

In the severe phase “People … cannot communicate and are completely dependent on others for their care. Near the end, the person may be in bed most or all of the time as the body shuts down.” This is the precursor of death.[14]

While Alzheimer’s can only be definitively diagnosed following an autopsy and the examination of brain tissue, during life physicians have various tools they utilize to generate a working hypothesis to identify the condition. These can be pivotal in applying for and obtaining governmental or other insurance benefits, and possibly for convincing your judge that your client is in need of what may seem extravagantly expensive care, and that a GAL (Guardian Ad Litem) should be appointed.[15] They include:

Asking the person, and family members or friends, question regarding the patient’s medical history, daily activities, and changes in behavior or personality
Conducting tests of memory, attention, counting, problem solving, and language abilities
Undertaking a differential diagnosis to exclude other possible conditions and causes
Performing brain scans like CT’s and MRI’s, or Pet scans, to rule out other possible causes

B. The Demographics of Alzheimer’s Disease

Alzheimer’s disease appears to be gender biased, and even racially prejudiced: Unlike death, it is not even-handed in distributing its misery. It has statistical preferences that are likely to burden certain populations more than others. Women are seen as having a higher likelihood of contracting the disease, if only because they tend to live longer than men – two-thirds of Americans with Alzheimer’s are women.[16] African-Americans are about twice as likely to experience dementia as are similarly aged older whites, and Hispanics are one and one-half times as likely.[17] Otherwise, dementia surfaces fairly predictably overall, albeit with a brazen randomness among individuals, based upon age.

According to the Alzheimer’s Foundation of America (AFA), which exists to support victims of Alzheimer’s and their families, as of 2017 as many as 5.5 million Americans have been diagnosed with some level of Alzheimer’s related dementia.[18] In California, the AFA estimates that some 630,000 individuals aged 65 and beyond will receive this diagnosis in 2017. One-sixth of these will qualify between ages 65 and 74, and five-sixths will qualify above age 75. While one in ten Americans at age 65 and above currently receives the diagnosis, these numbers are escalating alarmingly. The AFA estimates that number to increase to 3 in 10 by 2025.[19] This is not surprising given the realities of the Baby Boomer cohort: With national life expectancies at historic increases and set to rise further, the Population Reference Bureau (PRB) reports that the number of persons age 65 and over at 46 million today will increase by another 18 million souls between 2020 and 2030.[20] The number of people aged 85 and older is projected to triple from 6 million today to nearly 20 million by 2060.[21] Californians will share those statistical proportions.

The PRB has created graphs that break down where older Americans live by county. You, as a legal professional, can predict at a glance some proportion of the ratio of cases you might expect to see in the coming years, based upon where your client base resides.[22] Practitioners will bump into these cases in differing degrees, depending upon where their shingles hang.

C. What Treatment Options Exist?

Current approaches focus on helping people maintain mental function, in managing behavioral symptoms, and are directed towards slowing or delaying the symptoms of disease. They also focus on the mental health and stress level of family members and other caretakers, because the emotional burdens of caretaking an Alzheimer’s victim are immense.

The caretakers themselves, while not our clients beyond their possible involvement as GALs, are likely the persons upon whom we must rely in order to manage our dementia related family law cases. The burdens these folks shoulder are immense and potentially soul consuming. As legal professionals, we need to take care in preparing declarations and presenting evidence on behalf of our clients, where personal knowledge may not exist to anywhere near to the degree we are accustomed to in our other cases. We must also be alert to conflicts of interest, particularly where the family member is advancing costs for their loved one, must serve as our conduits to the client.

D. What Are the Options and Economic Costs for Alzheimer’s Care?

Depending upon the stage and progress of the disease, levels of care commonly include the following:

Adult Day Care

Adult care centers are intended to provide relief to full-time caregivers, as well as the ailment sufferers. They allow a caregiver to park their charge at a day-time facility, while the caregiver gets a break to run errands, rest, or have a life. They are particularly useful for working caregivers, and typically provide services for 7 to 10 hours. Some provide weekend, or evening, care for the patient.

For the patient, adult care centers seek to stimulate and occupy them with social and other activities, and may provide counseling services for the person with dementia and their families. They may also provide personal care, nutrition, and medical health services. Some provide speech, occupational, or physical therapy.

As is true of all the costs for care in this arena, projections are all over the map and just as the quality of services differs. Many are governed by state regulations, which limit the number of supervised patients per licensed caregiver. The costs that a patient may be charged are often capped, depending upon what governmental entity is involved, if any (i.e., Medicare, Medicaid or Medi-Cal, and Veteran’s programs).

The costs for adult day care varies, often depending upon “service intensity,” which includes meal frequency and costs, the transportation costs of picking up and returning a patient, and so on as applicable. Labor costs for facility caregivers typically eat up half of what is charged, with meals and transportation comprising the remainder of expenses before profits.

According to statistics provided by the National Center for Assisted Living (NCAL), average monthly day health care in California is $1,688/month.

In-Home Care

According to the ALZ, in-home services commonly include companion services (supervision for recreational activities or visiting); personal care services (help with bathing, dressing, the toilet, eating, exercising); homemaker services (housekeeping help, shopping, meal prep); and skilled care for wounds, injections, PT, and other medical needs that must be serviced by licensed professionals.

The costs for in-home care, as one would expect, also varies greatly depending upon private pay verses insurance and the party’s state of health. According to NCAL, the median cost for home health care involving “homemaker services” in California is $4,385/month. Throw in a home aide for more extensive personal care, and the number increases to $4,576. These costs are climbing every year. NCAL estimates that by 2020 these monthly costs will climb by over 10%.

Residential Care (Assisted Living)

Often referred to as ALs, treatment become more complex, and costs begin to really stretch budgets even for high net worth individuals and couples, in assisted living facilities. Options include “retirement housing” for early-stage Alzheimer’s sufferers who retain some ability for self-care; “assisted living” struggles to bridge the gap between independent living and a nursing home. It typically offers a combination of housing, meals, and support services and health care. Many assisted living centers are designed for seniors generally, but provide varying levels of Alzheimer’s care too.

NCAL reports that nationwide women comprise 70% of the ALs population. 10% of residents are age 65 to 74; 30% are between 75 and 84; and 53% are over age 85. The median length of ALs stay is around 22 months, after which some 60% of the residents will move out of assisted living as part of a transition to a skilled nursing center.[23]

Nationally, the costs for ALs care ranges from $2,525 to $5,745/month for seniors not specifically diagnosed with Alzheimer’s.[24] In California the median cost is $4,000/month.[25] Treatment to address Alzheimer’s care on average costs an additional $1,150, monthly. These charges are just for the care services at the facility itself, and do not include costs for prescriptions, complex medical treatment, or typical personal expenses.

Nursing Homes

These are often referred to as “skilled nursing facilities”. Nursing homes provide 24-7 care, and long-term medical treatment. Staff are trained to address nutrition, care planning, recreation, spirituality, and medical care. Quality of care differs wildly among different facilities.

These facilities begin to exponentially push the cost envelope. Almost all nursing homes or skilled nursing facilities are equipped to provide services for those stricken with Alzheimer's or dementia. Most do not charge additionally for related services since comparatively these individuals do not require more care than other nursing home residents, excluding memory care units – discussed below.

In 2016, the national average amount paid for a shared room in a skilled nursing facility was $220/day or $6,600/month. Golden State daily averages ranged from $140 - $770. Sharing a residence reduces the cost to 80-90% of that for a private room.[26] Unfortunately, sharing a room is not always an option for persons with aggressive forms of dementia.[27]

The median cost in 2016 for a semi-private room per month in California was $7,604, which is projected to increase to $8,558/month by 2020. A private room in 2016 cost $9,338/month and will likely rise to $10,510/month in three years.

Monthly costs vary from county to county. For instance, in 2016 the average cost in Orange County was $7,734/month for semi-private rooms and $12,471/month for private rooms. In the greater Riverside county area semi-private rooms averaged $6,509/month in 2016, and $8,821/month for private rooms.[28]

Again, these prices often do not include the more targeted memory care unit services that the majority of such facilities offer.[29]

And, always, these numbers exclude costs that are personal to the resident – clothing, phones, computers, and trips outside.

Memory Care Units

Also known as Alzheimer’s special care units, these are designed to meet the specific needs of individuals with dementias. Within the setting of a skilled nursing facility, these units provide a regimen of services for Alzheimer’s patients.

E. What Government/Insurance Aid is Available for the Treatment and Care for Dementia Related Disorders?

This subject is beyond the scope of this inquiry, but to be faithful to a general overview of the subject matter so that you can give a satisfactory response to your judge’s questions about how costs can be reallocated to the taxpayers and governments, as opposed to the other spouse – a general overview is proffered.

The California Advocates for Nursing Home Reform (CANHR) is an excellent resource for a basic explication of how Medicare works, and as contrasted with Medi-Cal. As CANHR describes it,[30] Medicare is a federal insurance program paid out of Social Security deductions. All persons 65 or older who have made Social Security contributions are entitled to the benefits, as well as persons under 65 with disabilities who have been eligible for Social Security disability benefits for at least two years, and persons of any age with end-stage renal disease.

Medicare has several parts including Hospital Insurance (Part A) and Medical Insurance (Part B). If a person has not worked long enough to be covered for benefits, s/he may enroll in Part A and pay a monthly premium. If Medicare Hospital Insurance is purchased, that person must also enroll in Part B, Medical Insurance.

Medicare program participants are liable for co-payments and deductibles as well as for monthly payments for Part B coverage. Medicare is not based on financial need. Anyone who meets the age, disability and/or coverage requirements is eligible.

Medicare does not pay for all medical expenses, and usually must be supplemented with private insurance ("medigap") or consumers can enroll in an HMO plan that contracts with Medicare. After 3 days of prior hospitalization, Medicare will pay up to 100% for the first 20 days of skilled nursing care. For the next 21- 100 days, the patient will pay a co-payment. The premiums and co-payments are increased every year. There will be no Medicare coverage for nursing home care beyond 100 days in any single benefit period.

It should be noted that Medicare only pays for “skilled nursing care,” does not pay for “custodial care” and the average permitted stay in a nursing home under Medicare is usually less than 24 days. Thus, few can look to Medicare to pay for any substantial nursing home costs.

Medi-Cal is a combined federal and California State program designed to help pay for medical care for public assistance recipients and other low-income persons. Although Medi-Cal recipients may receive Medicare, the Medi-Cal program is not related to the Medicare program. Medi-Cal is a need-based program and is funded jointly with state and federal Medicaid funds. SSI and other categorically-related recipients are automatically eligible. Others, whose income would make them ineligible for public benefits, may also qualify as "medically needy" if their income and resources are within the Medi-Cal limits, (current resource limit is $2,000 for a single individual). This includes medically indigent adults in skilled nursing or intermediate care or those who qualify for Medi-Cal funded home and community based waiver programs.

The State sets a "maintenance need standard". Since January 1, 1990 the maintenance need standard for a single elderly/disabled person in the community has been $600 monthly; the Long Term Care maintenance need level (i.e., personal needs allowance when someone is in a nursing home) remains at $35 monthly for each person.

Individuals whose net monthly income is higher than the state payment rate may qualify for the program if they pay or agree to pay a portion of their income on monthly medical costs. This is called the share of cost. Individuals eligible for a share of cost must pay or take responsibility for a portion of their medical bills each month before they receive coverage. Medi-Cal then pays the remainder, provided the Medi-Cal program covers the services. This works much like an insurance deductible. The amount of the share of cost is equal to the difference between the "maintenance need standard" and the individual's net non-exempt monthly income.

II. Temporary Spousal Support for the Alzheimer’s Sufferer –

When Guideline Support Is Not Gospel, and Never Enough

Here is a fact pattern for this thought experiment that I will be coming back to (and it is also a true and accurate story of the case that inspired me to embark on this Blog, in order for me to work through "their" issues and "my" issues on the subject):

H and W marry when H is 83, and W is 70, in 2012. Both are retired. H was a successful professional before marriage, and is a widower. He has an estate worth $3.4 million, comprised of $2.9 million nontaxable municipal bonds generating a monthly income of $8k/month, $2.3k/month in SS income, other cash resources, and including a free and clear home worth $500k. W likewise is a widow. Following the DOM, H convinces W to sell her home in Sun City, and to move in with him and provide the companionate love that they both desire. He pays all their expenses. Upon the sale of her home she nets $250k. She also has IRA assets of $300k, which she is required to liquidate in small tranches each year at a rate of about $1,200/month. W receives SS of about $900/month. There is almost zero CP, given that neither has time, skill or efforts that might contribute to its creation per Family Code section 760. While all of W’s needs are met by H during their marriage, the parties are relatively frugal. Husband doesn't like to fly, or to take vacations.

They are married for almost 6 years. W shows symptoms of dementia in early 2016, and develops ambulatory problems. She begins to need outside caretakers, that H pays with W’s money, which he manages as her memory and Parkinson’s progress. She becomes more than H can handle on his own. I guess that is not unreasonable, except for the "except death do us part" stuff.

In 8/16, H tells W’s children he has had enough. He loves her and she was a good and loyal spouse, but W is too difficult to care for and he admits he is worried about spending down his assets, but based upon his $10k/month in income, including a large nontaxable component, and $4k/month in reported expenses. Yet, his SP estate continues to grow, and he will never exhaust his own resources before he passes. He tells W’s children that he intends to place W in a facility out of the area, because it is too painful to have her near, if they do not do so first. He expresses his view that the financial responsibility for caring for W, until her death, should be their's based upon their moral responsibility as her children. He agrees to pay the costs of moving her from their home (his SP) to a facility out of the area near where her son resides, but later he reneges. A facility is found for “mom” by her children, which costs $12k/month, including a special memory care unit she needs. At 13k/month (including living expenses beyond the facility charges), mom’s net worth will be exhausted in X number of months.

How would you rule? Obvious pro and con arguments are implicated. The question of perceived relative equity is always fraught, and this is no less true for a subject – alimony – the justifications for which remains a topic of considerable controversy.[31]

A. Temporary Spousal Support – The Launching Point

California has long recognized two types of spousal support and our judges and justices have applied slightly different standards and rules about how to determine each: "Temporary" or "pendente lite" spousal support and "permanent" or "judgment" spousal support. Temporary spousal support is determined one way, and judgment spousal support another. Temporary spousal support is essentially what a court may order until the community property has all been divided equally according to marital balance sheet, in the form of a Judgment at the end of the case. Once that occurs, we enter the zone of "judgment" spousal support. Dementia cases may be treated differently depending upon whether the issue is temporary or judgment spousal support. I will develop the judgment spousal support themes as this series evolves - for now I am mostly concerned with analyzing pendente lite support issues and arguments.

In 1982, when I was first licensed to practice law, there was no such thing as "Guideline" spousal support in its current form. Some California counties or particular courts had schedules that judges might rely on, in order to create uniformity of alimony awards depending upon the parties' relative incomes, but it was mostly the Wild West in terms of what support amounts might be ordered. Indeed, outcomes were highly dependent on judicial viewpoints and even bias for genders, and sometimes the status of the attorneys involved. As you might imagine, this created the potential for a lot of variability in terms of support awards, particularly from one jurisdiction to another (including the demographics of a given venue), but also from case to case and attorney to attorney. This encouraged litigation and the rolling of dice, because it was very difficult for lawyers (and especially youngster attorneys, as I was then) to reliably predict how a Court might rule - and so to settle the case more economically without having expensive hearings.

Predictability is imperative to the efficient and fair administration of justice, not only so that people are treated uniformly throughout the State, but in order for lawyers - as deal-makers - to know what to expect and how to set their client's expectations. And family law litigation was so much cheaper then than it has become today. Having an idea what amount in spousal (or child) support is likely to be ordered in any given case is critical to lowering risks for clients as well as their fees, at least for responsible and competent family law attorneys.

A detailed review of the evolution of "Guideline" support in California is beyond the current scope and aim of this article. As a general overview of the history of uniform child and spousal support standards throughout the State, the Agnos Child Support Standards Act of 1984 (the Agnos Act) was adopted by our legislature and became effective July 1, 1985. It was intended to standardize child support awards and to fix minimum amounts, according to a formula involving relative incomes and timeshares, that courts could not deviate from in setting child support, except under certain circumstances (as with a wealthier parent or parents). However, it did not create standards for spousal support. Various counties, however, did. These were not binding upon other counties, and were in effect advisory.

Effective in 1993, the Agnos rules transitioned into the guideline systems that we now have, beginning with Family Code section 4050 and relating to child support, as a result of pressure from the federal government for states to establish uniform mechanisms for child support awards. How child support awards are calculated today is addressed elsewhere on this Blog, but the essential premise is as stated in Family Code section 4052: "The court shall adhere to the statewide uniform guideline and may depart from the guideline only in the special circumstances set forth in this article." Programs have been developed to render sensible the formula for the actual determination for child support which is laid out in Family Code section 4055, like the Dissomaster and the Xspouse. Those programs have also, for many years, incorporated various California counties' schedules for recommended uniform spousal support orders as an option for judges to use in setting both child and spousal support (or one or the other) at the same time. The Santa Clara spousal support schedule is the most often used default formula for determining temporary spousal support awards. These guidelines, by the way, never apply to or determine "judgment" spousal support - i.e., the spousal support which may be ordered at the conclusion of a case pursuant to Family Code section 4320.

What has happened, over time, is that these spousal support guidelines have generally become the rule, rather than the exception, because of their efficiency and uniformity, and therefore their predictability, not the least reason for which is to make it easier and more efficient for judges to render spousal support decisions. And lawyers, like me, to predict outcomes and consequences and so advise my clients accordingly.

Unfortunately, particularly for people suffering the expense related ravages of dementia diseases, guideline spousal support analyses are not equipped to deal with catastrophic medical or special care living expenses when people divorce. Yet, I have noticed that many young attorneys, who have generally grown up with standardized temporary spousal support rules, don't realize that they are advisory and not "gospel." Guideline spousal support can be wholly inadequate to care for an Alzheimer's spouse, and you need to know this if you are going to represent a party in an Alzheimer's setting! Which is what motivated me to begin this series.

The starting point for a temporary support analysis is Family Code section 3600, which has essentially been the rule for decades (albeit it was previously part of the Civil Code before our current Family Code was enacted in 1992). It provides in pertinent part:

“During the pendency of any proceeding for dissolution of marriage or for legal separation of the parties …, the court may order (a) the husband or wife to pay any amount that is necessary for the support of the wife or husband, consistent with the requirements of subdivisions (i) and (m) of Section 4320 and Section 4325, …”

Section 3600 does not, contrary to some popular misunderstandings, expressly invite a 4320 analysis for temporary support purposes except as to the enumerated subsections. “Need” and “ability to pay” – boom, that is it. Pendente lite attorney fee applications are another matter. These are often the second half of the dementia spouse’s application, and these do generally require some evidence of the parties' marital circumstances.

It is axiomatic and oft-repeated that trial courts have broad discretion to determine the amount of temporary spousal support awards, considering both the supported spouse’s need for support and the supporting spouse’s ability to pay. Trial court rulings will not be reversed absent a clear showing of an abuse of discretion (or symptoms of the failure to exercise discretion at all). E.g., IRMO Dick (1993) 15 Cal.App.4^th 144, at 165 citing IRMO Czapar (1991) 232 Cal.App.3d 1308, at 1316), and IRMO Blazer (2009) 176 Cal.App.4^th 1438, at 1442. Neither Dick nor Blazer identified guidelines or local court schedules as bearing on determining need or ability to pay for temporary spousal support purposes. Both cases involved high net worth individuals and incomes beyond the scales seen in the day-to-day family court trenches, rendering rules of thumb less compelling.

B. A Review of the Early Appellate Response to a Guideline Spousal Support Revolution

An important case that supports your arguments that justify ignoring the convenience of relying upon schedules or punching “enter” in the Xspouse or Dissomaster programs on a computer is IRMO Burlini (1983) 143 Cal.App.3d 65, at 70.

IRMO Burlini involved an appeal from both a temporary and judgment spousal support award, following a 24 year marriage. It was issued one year after I was admitted to practice. At that time, prior to the popular advent of computers, the Santa Clara Superior Court employed “guidelines” to aid in imposing consistency in support awards, for the obvious purpose of easing judicial burdens and imposing a uniformity in support application outcomes. The case even makes authority reference to “Adams & Sevitch” publications, which not only makes this writer nostalgic but also makes me feel old. It is a key case that explicates the notion that temporary spousal support serves different public policy considerations than judgment spousal support, and so if often higher. It explained that:

“Spouses residing together have one family income whether one or both spouses are employed. They develop a standard of living based upon that income. Separation of the parties results in no change in that income, but their total expenses increase because of the additional expenses incurred by the party who leaves the family home. That person must incur new expenses, including those for shelter, utilities, and furnishings. Separation may also result in an increase of some expenses for the spouse remaining in the family residence. The temporary spousal support order is an attempt, pending trial, to allocate the family income equitably between the parties, considering their individual incomes and expenses….”

Burlini addressed a much more modest fact pattern than the relatively extreme circumstances presented by Dick and Blazer. The W appellant’s complaint appears to have been that the trial court gave her less money as ‘permanent’ spousal support than had been ordered under the ‘guideline’ for temporary support. Burlini makes clear that guidelines are one thing – and acceptable – in the pendente lite phase, but not so at the end of a case. As such, it approved a scheduled analysis for temporary support purposes. The decision states:

“Many California courts have adopted guidelines for temporary support. These are nothing more than a method of dividing the family income proportionately by adopting a schedule, in chart form, based upon either the net income of the person being asked to pay support or the net incomes of both parties. Guidelines for temporary spousal support generally include a statement such as that contained at page 15 of the Uniform Domestic Relations Local Rules for Bay Area Superior Courts that ‘This schedule shall not be used as a guideline for long-term spousal support at trial or thereafter.’”Id., at 70.

But the Burlini court went on to note, in a passage that is extremely important for spousal support dementia claimants at the temporary support stage, “Although the adoption of guidelines for temporary support is to be encouraged, it should be emphasized that they are only guidelines to be utilized in cases with no unusual facts or circumstances. If, for example, the tax consequences contemplated by the guidelines, e.g., temporary spousal support not to be taxable to the recipient, are incorrect, or a party is paying spousal or child support from a prior relationship, the guidelines should be applied as modified by such facts or circumstances. This would also be true where there are … exceptional medical or dental expenses, or other special needs of a spouse…. Indeed, the facts or circumstances of a particular case might well be so unusual that a court's guidelines for temporary support would be totally inapplicable.” [Italics added].Id.

Burlini was approved in IRMO Winter (1992) 7 Cal.App.4^th 1926, specifically at to Burlini language about "unusual facts and circumstances," which the Winters court found did not exist in its case. The husband, a doctor, evidently urged under Burlini that spousal support should be lower than guideline under the special circumstances of his marriage because the parties were exceptionally frugal and saved their money for investments. In upholding a Sonoma County guideline schedule award, the justices stated "The 'status quo' in this case, where the parties lived very modestly in comparison to their means, including substantial funds for savings and investment. Husband concedes that if this were a case where the parties had 'enjoyed an expensive lifestyle ... the Court could find that a just allowance would be one sufficient to enable the wife to continue enjoyment of luxuries which had become "necessities.".... [W]e fail to see why Wife should be deprived of her accustomed life-style just because it involved the purchase of stocks and bonds rather than fur coats." Id. at 1932-1933.

The problem with dementia-type cases particularly in the temporary support phase of a case, where the break-up occurs before or shortly after significant expenses begin to be incurred for a recently diagnosed spouse needing greater and more expensive health care services, is that they may defy the conventional reasoning of temporary suppose formulas generally, which often look to "accustomed life-style" status quos that need to be maintained, as with IRMO Winter. Cases have held that temporary spousal support is "usually higher than permanent support because it is intended to maintain the status quo prior to the divorce." Marriage of Schulze (1997) 60 Cal.App.4th 519, 522 [emphasis in original]; Marriage of Blazer (2009) 176 Cal.App.4th 1438, 1442 (citing Schulze). But that status quo may certainly be less than an above-guideline award. This is where a temporary support payor needs to look for defensive arguments to counter the requests of a spouse who has recently been bumped into a greater health care cost situation.

It is not uncommon that elder marriages involve people who remarry late in life, and their marriages may therefore be relatively short. The rules for younger folks in short marriages are not terribly charitable towards a support recipient spouse, even if they suffer from medical issues. In Marriage of Hebbring (1989) 207 Cal.App.3d 1260, involving a very short marriage of 26 months with two spouses whose ages weren't set forth in the opinion but who were clearly not elders, the justices ruled "We hold that under the facts of this case -- a marriage of short duration where the spouse seeking retention of jurisdiction is in good health and enjoys permanent employment providing income adequate for self-support -- it is reversible error to retain open-ended jurisdiction over spousal support. This holding meets the objective of the legislative policy behind the Family Law Act that, where appropriate, the obligations of former spouses are ended so that they can proceed to develop their future lives." Id., at 1266-1267.

In elder dementia type cases we have almost no reported cases to guide us, although there are cases where a spouse was completely disabled from some other medical condition. We have medium age spouses, as with Marriage of Wilson (1988) 247 Cal.Rptr. 522, involving a husband who was 46 years old and a wife who was 48, with the wife having suffered in a fall that caused injuries that her doctor claimed required brain surgery. The parties were married before separation for some 70 months. The wife was evidently seeking lifetime support based upon her medical situation, which the appellate court assumed would make it impossible for her to ever become self-supporting, and she did receive spousal support for 58 months before further support was terminated by the trial court. The Wilson court noted the trial court had "recognized both the grievous and permanent nature of Elma's disability. [Nonetheless] It was beyond the court's power to render her self-supporting." Id., at 919. The justices concluded "While no one will dispute Elma's tragic disability, the clear trend is for trial courts to consider the totality of circumstances as required by section 4801. Self-support and length of marriage are each but one of eight important factors. (See In re Marriage of Prietsch & Calhoun, supra, 190 Cal.App.3d at p. 663). Each must be balanced in light of the others. This rule applies even where a permanently disabled spouse may be denied support after a short marriage. ¶Once the trial court logically and reasonably applies section 4801, all that remains for the appellate court is a review for potential abuse of discretion. Because the trial court carefully weighed all eight factors, the decision to terminate support including medical coverage was not an abuse of discretion given the totality of circumstances."

In doing so they relied on another case that involved a 64 year old support recipient: "Although we are unable to find a California case with facts like these, In re Marriage of Bukaty (1986) 180 Cal.App.3d 143 comes close. There an unemployable 64-year-old wife sought support after a 19-month marriage. She relied heavily upon her prior marriage to the same husband and lengthy cohabitation with him. After weighing all the section 4801, subdivision (a) factors the trial court ordered three years of support at $400 per month. On review the appellate court explained the Morrison proscription on support termination concerned lengthy marriages and did not apply to all marriages regardless of length."

End of part 1, for the moment. Please come back!

[1] Kabir, Ecstatic Poems, Versions by Robert Bly

[2] http://annals.org/aim/article/2466364/burden-health-care-costs-patients-dementia-last-5-years-life

[3] http://www.prb.org/Publications/Media-Guides/2016/aging-unitedstates-fact-sheet.aspx

[4] http://www.pewresearch.org/fact-tank/2017/03/09/led-by-baby-boomers-divorce-rates-climb-for-americas-50-population/

[5] https://www.bls.gov/opub/mlr/2013/article/marriage-and-divorce-patterns-by-gender-race-and-educational-attainment.htm

[6] https://www.psychologytoday.com/blog/the-intelligent-divorce/201202/the-high-failure-rate-second-and-third-marriages

[7] http://www.npr.org/2012/03/08/148235385/gray-divorce-over-50-and-splitting-up

[8] http://www.medicalnewstoday.com/articles/290583.php

[9] https://www.caregiver.org/women-and-caregiving-facts-and-figures

[10] www.nia.nih.gov/

[11] http://www.alz.org/facts/

[12] https://www.nia.nih.gov/health/what-are-signs-alzheimers-disease

[13] https://www.nia.nih.gov/health/what-are-signs-alzheimers-disease

[14] https://www.nia.nih.gov/health/what-are-signs-alzheimers-disease

[15] The defining characteristic of a durable (i.e., ‘springing’) power of attorney is that the attorney in fact continues in their role as attorney in fact even after incapacity. This is a scary concept, and can easily be abused. Conflicts of interest easily arise between children or other caretakers of dementia victims, who themselves are under the most extreme stressors a resulting entitlement justification that people commonly rationalize. A person who has been named as an attorney in fact under a GAL, is presumed to be a proper person to be appointed as a GAL absent a clear conflict of interest. IRMO Caballero (1994) 27 Cal.App.4^th 1142, at ___. Note that no GAL appointment form has been supplied by the Judicial Council in non-custody related family law cases.

[16] http://www.alz.org/documents_custom/2014_facts_figures_fact_sheet_women.pdf

[17] http://www.alz.org/documents_custom/final_f-f_2010_general_release.pdf

[18] http://www.alz.org/facts/

[19] http://www.alz.org/documents_custom/facts_2017/statesheet_california.pdf?type=interior_map&facts=undefined&facts=facts.

[20] http://www.prb.org/Publications/Media-Guides/2016/aging-unitedstates-fact-sheet.aspx

[21] https://www.census.gov/prod/2010pubs/p25-1138.pdf

[22] http://www.prb.org/DataFinder.aspx

[23] https://www.ahcancal.org/ncal/facts/Pages/Residents.aspx

[24] https://www.payingforseniorcare.com/longtermcare/costs.html

[25 https://www.payingforseniorcare.com/longtermcare/costs.html

[26] https://www.payingforseniorcare.com/longtermcare/lower-the-cost-of-assisted-living.html

[27] https://www.iadvanceseniorcare.com/blogs/lisa-cini/memory-care-private-vs-semi-private-rooms

[28] https://www.payingforseniorcare.com/financial-assistance/california.html

[29] http://assistedlivingtoday.com/p/memory-care/

[30] http://www.canhr.org/factsheets/medi-cal_fs/html/fs_medcal_overview.htm

[31] See e.g., the excellent article by AAML Fellow Marshall S. Willick, http://www.aaml.org/sites/default/files/MAT105_7.pdf

Can Self-Defense Be Used to Defend Against Claims of Domestic Violence?

Michael C. Peterson, CFLS — Wed, 06 Sep 2017 00:03:00 GMT

Self-Defense and Domestic Violence: Defending DV Abuse Claims and In re Marriage of Grissom

By: Michael C. Peterson, CFLS

A trend in California appellate courts over the past ten years in domestic violence litigation has been to flush out the meaning of the term “abuse,” as defined by the Domestic Violence Protection Act (“DVPA”; Fam.C. § 6200, et seq.), and particularly conduct constituting "harassment" and/or "disturbing the peace" of another within the setting of intimate relationships. Appellate decisions reflect an increasing awareness and sensitivity over the varietals of conduct that may constitute abuse, as grounds for a restraining order. Technological change and its impact on society’s methods of communication have challenged justices and family court judges to expand in tandem with the types of loathsome behaviors that a digitized world may facilitate. Appellate cases have recognized abuse as occurring in the following notable contexts:

► Unwanted, repeated contacts [Sabato v. Brooks (2015) 242 CA4th 715, 725, 195 CR3d 336, 344];

► Communicating inappropriate sexual innuendo by text messages [Burquet v. Brumbaugh (2014) 223 CA4th 1140, 1144, 167 CR3d 664, 668];

► Accessing, reading and publicly disclosing another’s confidential e-mails [Marriage of Nadkarni (2009) 173 CA4th 1483, 1496, 93 CR3d 723, 73].

More rare are appellate cases providing facts of what is not abuse under the DVPA. One example is found in S.M. v. E.P. (2010) 184 CA4th 1249, 1265-1266, 109 CR3d 792, 803-804 where an appellate court determined that, over the course of a single night, pulling covers off a sleeping romantic cohabitant, turning lights on and off in a room occupied by said sleeping cohabitant, and calling said cohabitant a “cold bitch” was not abuse. Another is that a person’s infidelity and seeking a restraining order against the other is not abuse [Altafulla v. Ervin (2015) 238 CA4th 571, 582, 189 CR3d 316, 324].

However, I had never reviewed a published case discussing the extent by which a person opposing a DVPA restraining order request might use a degree of physical force to defend themselves against the other party, in connection with the underlying events. This changed with the certification for publication of In re Marriage of Grissom, delivered by the Fourth Appellate District, Division One, appellate case number D070495.

In Grissom, the wife filed a DVRO request against her husband, alleging he had physically injured her on at least two recent occasions. The husband answered, alleging the wife had instigated each of the physical contacts resulting in injuries to her (and had repeatedly done so in the past by taking his work-related property and preventing him from accessing it until he acceded to her demands). The first incident in Grissom occurred in August, 2015 and involved the wife snatching the husband’s laptop, her hiding it, him finding it in a hidey-hole in the parties’ bedroom, and him taking it back. A physical struggle ensued over the laptop, with the wife simultaneously spit-ting in the husband’s face and then covering his mouth and nose with her hand, him biting her thumb to get her to release her grip, and them falling to the bed with the wife becoming injured (a scraped knee on the bedpost and a bruised, bitten thumb). Gosh, people behave like this? Oh, yes, yes, they do.

The second incident discussed in Grissom occurred in November, 2015 and involved the wife allegedly snatching the husband’s cell phone in their garage, her looking through it in his presence, him snatching it back when she came close, a physical struggle over the cell phone wherein he told her to stop and that she was hurting him, him attempting to wriggle away, and her falling and hitting her head on the car bumper and tail-bone on the ground when he did wriggle away causing her to lose her balance.

The third incident occurred the next day, when the husband began packing a bag to leave and the wife again snatched his cell phone from him, with the parties struggling into the kitchen whereupon the husband pinched a nerve in his back and collapsed, and the wife ran the cell phone under running water in the sink. Any of this sound familiar? It sure does to this author, in the course of his legal practice.

The Grissom trial court found there was no abuse by the husband, and the appellate court agreed that the husband did not commit an act of abuse merely by defending himself and his property. The courts found and upheld the defense that the wife’s aggressive conduct “triggered” the husband’s responses, and that the husband did not use excessive force in connection with his responses to the wife’s aggressive conduct.

The justices ruled: "Although section 6203 defines abuse to include an intentionally or recklessly caused bodily injury to the complainant, a finding of abuse is not mandated merely because the complainant shows he or she suffered an injury caused by the other party. Instead, fundamental and well-established principles allow a victim of physical aggression to employ reasonable force to defend his or her person or property against the aggressor, even when such reasonable force causes some bodily injury to the aggressor. The trial court properly recognized that a person who responds reasonably to an aggressor in this way does not commit abuse within the meaning of section 6203."

In holding that a person may use a reasonable amount of force to defense himself or herself from aggressive, triggering behavior, the appellate court rejected the wife’s argument that the DVPA provided no affirmative defense of self-defense, and therefore any intentional or reckless conduct on the part of a person defending in a DVRO proceeding required a restraining order result. The appellate court said that “the language of the statute coupled with long-standing and fundamental principles of responsibility and culpability” precluded it from over-turning the trial court’s decision.

The appellate court went on to discuss Fam. C. § 6305 and its language concerning the requirements for a mutual restraining order, that both parties acted as primary aggressors, reasoning that the “clear purpose of this requirement is to avoid restraining a party who is not culpable, and reflects the Legislature’s understanding that reasonable self-defense is a defense to a claim of abuse.”

The Grissom appellate court next went on to discuss codified and common law principles of self-defense as recognized by the California Supreme Court in Calvillo-Silva v. Home Grocery (1998) 19 CA4th 714, agreeing that in the domestic violence context, a person may use reasonable force, under the circumstances, to defend against injury to person or destruction of property, and to retake property obtained by force.

To a degree, the nomenclature used by both the trial court and the appellate court in Grissom seems imprecise by ruling that the husband committed no act of abuse, whereas to a practitioner of jurisprudence it would be more accurate to say that the self-defense and defense of property conduct which the husband employed, being reasonable under the circumstances, constituted an affirmative defense such that denial of the wife’s requested restraining order was appropriate. But a practitioner in the trenches of Family Law could also see the problematic nature of such a pronouncement, there being multiple other statutes and case law which turn on an abuse finding with no codified exception for new case law’s possible recognition of self-defense as an affirmative defense in certain domestic violence litigation.

Take Fam. C. § 3044, and its specific provisions that a finding of abuse creates a rebuttable presumption against the abuser’s having custody of children; the statute makes no mention of an exception for self-defense. How would CCRC mediators deal with a trial court’s finding of abuse and possibly justified self-defense, simultaneously in a prior hearing? Possibly it would lead to confusion. Thus, the Grissom appellate court made a cleaner pronouncement by characterizing the facts of the case, in total, as non-abuse and thereby avoided the sticky details such as requiring of a body of statutes to be revised to comport to new case law.

The Grissom justices saw fit to mention in a footnote, fn 5, the fact that the wife had sought sole legal and physical custody orders of the parties’ child in connection with the proceeding. As custody was not directly relevant to the issues before the Court, perhaps this was a signal that there is an ever-increasing awareness of the problem of using domestic violence to gain a custody advantage? I hope the answer is "yes, it does," because gaming the court, the other parent, or possibly deleting that parent from a child's life where what transpired is misrepresented or not the whole truth - so to speak - is awfully destructive. I have so much faith in the wisdom of all of our judges and Justices!

Nonetheless, I'd wager that there will be extreme pressure applied to de-certify or limit this opinion, because it is absolutely not politically correct. Unfortunately, the decision does track the realities of human nature, in the land of relationship-endia. DV claims are something of a social/political see-saw; but given their seriousness in a huge number of cases for the victims and the laudable social policy that penalizes violence and in particular violence against women, these issues are fraught for the judges and the judged. True DV cannot be tolerated in a civil, enlightened society. Some balance needs to be imposed on these cases and upon such litigants in recognition of the fact, not that anyone ever deserves to be hurt by another, but because in a certain small percentage of the cases, our legislators have incentivized people to provoke the other and lie to gain a custody or financial advantage. I see this gaming attempted from time to time in my child custody and domestic violence related practice. This case is a breath of fresh air.

Author: Michael C. Peterson

My Spouse's Attorney Filed My Private Information With the Court! I Am Afraid of Identity Theft. What Can I Do?

Michael C. Peterson, CFLS — Thu, 31 Aug 2017 01:30:00 GMT

Private Information, Family Law Pleadings, and CRC Rule 1.201

By: Michael C. Peterson, CFLS

Sometimes California Rules of Court outside of Title 5 (i.e. rules applicable to family law proceedings) escape notice by family law practitioners (despite all statutes and judicial counsel rules being generally applicable to family law proceedings per CRC Rule 5.2). I recently came across one such rule effective on January 1, 2017, while we were researching our client's remedies as against an attorney, and her client, who filed our client's highly personal information as exhibits to support the claims in their motion. They negligently failed to redact the identifying information in the bank statements, and checks, which is extremely distressing to our client and an invitation to identity theft.

This rule creates new authority requiring the mandatory redaction of private information from court pleadings. CRC Rule 1.201 provides in pertinent part:

"(a) Exclusion or redaction of identifiers

To protect personal privacy and other legitimate interests, parties and their attorneys must not include, or must redact where inclusion is necessary, the following identifiers from all pleadings and other papers filed in the court's public file, whether filed in paper or electronic form, unless otherwise provided by law or ordered by the court:

(1) Social security numbers

If an individual's social security number is required in a pleading or other paper filed in the public file, only the last four digits of that number may be used.

(2) Financial account numbers

If financial account numbers are required in a pleading or other paper filed in the public file, only the last four digits of these numbers may be used.

(b) Responsibility of the filer

The responsibility for excluding or redacting identifiers identified in (a) from all documents filed with the court rests solely with the parties and their attorneys. The court clerk will not review each pleading or other paper for compliance with this provision...."

On nearly a daily basis, many family law practitioners examine and use documents containing information within the scope of CRC Rule 1.201, in fashioning their arguments to the Court. Examples include paycheck stubs, credit applications, canceled checks, bank or credit card statements, and tax returns containing social security numbers. Depository and investment account statements contain account numbers. Often such documents come to be filed as exhibits to declarations and contain information that impacts court's decisions and rulings.

Until January 1 of this year, custom and convention generally dictated that a family law practitioner redact all but the last four digits of social security and account numbers, and this has been how the professionals among us conducted ourselves. But statutory authority had simply provided that such information “may be” redacted by the filer without mandating such redaction (see Fam. C. § 2024.5), and a statute provided (for a short time) for procedures to seal pleadings containing identifying information about assets and debts. Fam. C. § 2024.6 allowed for the sealing of a pleading containing private identifying or financial information. It was held unconstitutional by In re Burkle (2006) 135 CA4th 1045, 37 CR3d 805 because the statute, allowing an entire pleading to be sealed if it contained private personal or financial information, was found to infringe the public’s First Amendment right to right to access other information that might law outside a recognized zone of privacy within the public record. Therefore, the statute was overly-broad since less-intrusive means, such as redaction, could serve the same purpose. BTW, one of the many reasons Mr. Arnold urges utilizing mediation or collaborative divorce is in order to avoid your divorce records, including unseemly accusations or your private financial information, being available to anyone under Burkle and the California Constitution.

Now, with CRC Rule 1.201, custom and convention is codified regarding redaction of personal identifying and financial information; social security numbers and financial account numbers must be redacted and only the last four digits can be included in pleadings and exhibits. However, the question remains, how does one enforce the rule (especially if Fam. C. § 2024.6 is unavailable), and what disincentives exist to prevent the bell from being wrung in the first place? Unfortunately, the rule does not impose attorney fee or other sanction type consequences.

So what do you do if this happens to you or your client? The remedy should be an ex parte motion to have the court staff redact the offending information and purge the records of such information. However, I have run into this issue and another problem emerges, one of already-scanned documents in the electronic filing system of Riverside County. It seems that court staff should simply be able to redact, re-scan, and re-enter the imaged document into the electronic filing system. But upon my request that a local bench officer order the same, I was met with resistance because this is apparently not so easy to do as one might think. I never did learn why exactly this solution was problematic, whether it is to do with time-costs involved for staff, lack of redaction oversight of court staff, technological problems with revising imaged documents in the electronic filing system, or some other issue such as internal rules for court staff not to alter documents received. But an efficient solution through the court clerks and staff needs to be created to allow litigants aggrieved by the opposing party’s failure to abide by CRC Rule 1.201 with a quick, low-cost remedy.

There ought to be some form of strong sanction against a party or attorney who violates CRC Rule 1.201. Personally, I am scared to death of identity theft, and I am surprised identity thieves do not use court records as a harvesting ground for private information (or, perhaps, they do). There is no record of who requests and obtains court records, and now they are often available on-line such that a fake identity can be made to obtain private information (i.e. one could be dealing with multiple layers of identity theft, a stolen identity can be used to open a credit card to purchase court documents to steal more identities). Moreover, the havoc that it can create with baseless money judgments against an innocent person, decreased credit ratings, and hours of time and energy to (try to) fix one’s stolen identity is mind-boggling. And I say “try to” with some cynicism in connection with fixing identity theft occurrences because sometimes corrected results are impossible to obtain. Certain type of information simply should not be allowed into the record in the first instance. So, the sanction should be commensurate with the risk of harm caused by the lack of diligence of a litigant or his/her attorney. Monetary sanctions are most appropriate, because money problems are the primary result a violation CRC Rule 1.201. If so, how much is an appropriate sanction amount? In the old west, it was a hanging offense to steal a horse because there was an inability for law enforcement to recover stolen horses. So too now there is such an inability for law enforcement to recover/delete stolen identities. If your social security number ends up on some dark-web site, good luck to you scrubbing it from the Internet. Hang ‘em high, I say!

A future option is to modify CRC Rule 1.201(b) and expressly require court staff to review pleadings and exhibits for private identifier and financial information. Of course, the increased costs to the court will be high and courthouse budgets are already at their breaking point. But the problem of identity theft (i.e. the gravity of risk of harm to innocent litigants) looms so large that such precautions should be enforced. To the extent that the public fisc cannot absorb clerks policing filings in this way, all the more reason why the cost and consequences for same should be shifted to the attorneys or parties who wrongly introduce personal data into the public record.

Litigants and practitioners need to be keenly aware of, and abide by, CRC Rule 1.201. Attorneys should meet with their paralegals and other staff to train them to assure that documents containing private information are properly redacted, and attorneys themselves should be double-checking every page that goes to be filed with the court. Bench officers need to facilitate redactions when privacy violations occur. Quick, effective remedies need to be in place to cure violations of CRC Rule 1.201.

And, teeth in the form of financial consequences needs to be added to the rule. In time, attorneys will take notice and self-represented parties will learn of this too - indeed, it would be a simple matter for the Judicial Council to add (yet another) warning that financial documents must be redacted for the court to accept them for filing.

Author: Michael C. Peterson, CFLS

Family Law Section of the Desert Bar Association September, 2017 Newsletter!

Law Office of Thurman W. Arnold — Wed, 30 Aug 2017 01:42:00 GMT

Greetings All:

I know that we at the EnlightenedDivorceBlog™ have been derelict in sharing new materials and family law analyses for some months now, and also in responding to emails. We so apologize. Hyperventilating takes all of us over, from time to time, and we have been trying to attend first to our prime responsibility - the lives and circumstances of our clients.

We are going to publish some new, original articles over the next week or so. In the meantime, I am proud to share with you what is probably the finest family law newsletter in California, that attorney Michael C. Peterson put together (with a little help from his friends), which will give you good guidance as to how family law judges generally view the responsibilities of lawyers, or self-represented parties, in presenting their cases.

Mike Peterson is the 2017 Chair of the Family Law Section of the Desert Bar Association. His Desert Bar Association, Family Law Section Newsletter will also serve you well if you seek local knowledge about the Indio family law courts, and we are proud to claim it is one of the best divorce related newsletters in the U.S.!

In the meantime, don't behave like these Hummers!

TWA

SEPTEMBER 2017 FAMILY LAW SECTION NEWSLETTER

Military Pensions and VA Disability Benefits in CA Military Divorce!

Law Office of Thurman W. Arnold — Sat, 15 Jul 2017 03:05:00 GMT

Family Law Three-Card Monte – Limitations to Remedies Concerning Military Pension Benefits Being Shifted to VA Disability Benefits Under Cassinelli and Howell

By: Michael C. Peterson, CFLS

A November, 2016 appellate decision in California (Cassinelli), coupled with a May, 2017 United States Supreme Court decision (Howell), seemingly forecloses all meaningful enforcement avenues in California for aggrieved spouses of former military members whose divided share of community military pension benefits has been diluted or eliminated by the latter party’s unilateral, extra-judicial election to receive VA disability benefits (thereby waiving all or part of their military pension). These developments require all Family Law attorneys and bench officers to use caution and to be aware of the current state-of-the-law in cases involving military pensions, and also to get creative on how to constitutionally safe-guard parties’ expectancies.

The Cassinelli Decision

California’s Marriage of Cassinelli (2016) 4 CA5th 1285, 210 CR3d 311, a decision reached by our own Fourth Appellate District, Division Two in Riverside, is now published and citable per California’s Judicial Council (but note that a Petition for Certiorari is presently docketed with the United States Supreme Court). Cassinelli places significant limits on the remedies available in California for the aggrieved non-military spousal whose community interest in the veteran-spouse’s military pension has been reduced or eliminated due to a shifting of payments from pension to disability benefits, and also makes an announcement of what that remedy is solely to be: Money damages (and of a non-fraudulent nature under the facts of that case).

In Cassinelli, the parties entered into a stipulated judgment whereby they equally divided the community interest in the husband/military-member’s pension, and reserved jurisdiction on spousal support. The wife’s share of that pension was to be 43%, or $541 per month, and the husband’s share was 57% for $791 per month. After 26 years or so receiving the pension, the husband was determined to have a combat-related disability, and he began receiving $1,743 in VA disability benefits and $1,389 per month in combat-related special compensation (likely related to his exposure to Agent Orange in Viet Nam). In doing so, the husband was required to waive a dollar-for-dollar portion of the pension under federal law. With the waiver of the pension, the wife began receiving nothing from DFAS. The wife moved for an increase in spousal support equal to the amount of her share of the waived pension. The trial court awarded the wife $541 per month in increased spousal support (apparently increased from zero).

On appeal, among the various issues raised by the husband, the Cassinelli Appellate Court held that the trial court erred in awarding the wife’s lost portion of the military pension as spousal support. In so concluding, it provided an analysis of the problem of pension-shifting in the context of then-federal-case-law-and-statute, and state court responses to this problem. It provided an in-depth discussion of California’s leading case on military pension shifting, In re Marriage of Krempin (1999) 70 CA4th 1008, and its dissection of the majority rule (22 states, including California, allowing for some equitable remedy to the non-military spouse in the form of support reassessment or redistribution of martial property) and minority rule (5 states allowing for no remedy) nationwide. The reasons for the majority rule boils down to: (1) The non-military spouse has a vested property right which should not be unilaterally reduced/eliminated by the action of/waiver by the former military member spouse, and (2) There are other potential assets of the former military member spouse to reimburse the non-member spouse.

The Appellate Court in Cassinelli went on to discuss the intention of the parties as manifested in the MSA/judgment. In so doing, it held that an express indemnification agreement protecting the non-member spouse in a MSA/judgment dividing a military pension is not required to allow a court to equitably redistribute, and that the language of the Cassinelli’s MSA/judgment led to the conclusion that the parties did not intend to allow the military member to defeat the retirement pay division terms by the husband’s unilateral waiver. It discussed the need for uniformity, the fact of a great number of self-represented litigants in family law created a significant policy concern about losing vested property rights without express indemnification provisions, and the Krempin statement that the lack of express indemnification language was not fatal. As to the specific terms of the Cassinelli’s MSA/judgment, it noted that: (1) Language in the document dealt with pension benefits, but that no express waiver of disability benefits was present, and (2) A presumption existed that the non-member’s right to retirement pay was “indefeasible.”

In terms of the remedy used by the trial court, the Cassinelli Appellate Court made dollar-for-dollar spousal support increase to effectively indemnify the wife for her lost pension benefit expectancy an unavailable remedy in California. It noted that, of the majority rule states, only a minority allowed for modified spousal support to be the remedy. Moreover, it stated that California courts could not do so because they were bound by Fam. C. § 4320’s factor analysis, and the fact that the trial court increased spousal support dollar-for-dollar in the amount lost by the wife as a result of the husband’s waiver of pension belied any credible position that a 4320 analysis had been, in fact, used by the trial court. In part, it reasoned that “a civilian spouse” should be entitled to recover the amount lost, regardless of earning capacity, other assets and obligations, remarriage, the former martial standard of living, or other 4320 factors.

The Cassinelli Appellate Court then went on to renounce constructive /resulting trust as to other assets held by the (former) service member spouse as available remedies as well, reasoning that would violate federal law and the holding of Mansell v. Mansell (1989) 490 U.S. 581, particularly its prohibition against community property states treating disability benefits as divisible property.

The Cassinelli Appellate Court went on to state that “[w]e believe it is better to hold that the military member has caused the loss or destruction of property right belonging to the civilian spouse and therefore be required to pay the civilian spouse money damages.” It continued “we do not mean to characterize this action as fraudulent, a breach of an implied covenant of good faith and fair dealing, contempt of court, or otherwise blameworthy. But the action (merely) upset the division of property as adjudicated in the judgment.”

Perhaps in the most unsatisfying portion of the Cassinelli opinion, the Appellate Court gave no substantive direction to enforcement of its pronounced money damages remedy for the aggrieved civilian spouse. It said there was little to distinguish the special combat pay from the disability pay in terms of enforcement. It simply pointed to the husband’s other assets as potential sources of recovery: His house and his car. Cynically, it stated “[i]t is possible that Janice will end up with a paper judgment that she can never enforce. Or Robert will choose to pay her out of his exempt assets to protect his nonexempt assets from seizure. Or Janice will settle her claim for a significantly reduced amount in exchange for immediate payout of Roberts’s exempt assets. Or Robert will win the lottery. But even if he is judgment-proof, she is entitled to a judgment.”

Key Takeaways from Cassinelli

The remedies available to non-military member spouses aggrieved by the other spouse converting his/her military pension benefits to disability benefits shrank considerably in California under Cassinelli, and now the likelihood of the former ever collecting is equally dubious: No in-kind spousal support increases, no reallocation of already-divided property, and no constructive trusts on property of the veteran-spouse. Without a doubt, many current and former military members will be ‘judgment-proof’ in terms of the existence of non-exempt assets in the traditional money judgment- enforcement context.

Moreover, particularly with the non-fault language of the Cassinelli decision concerning pension waiver under the facts (there was no evidence the husband’s purpose was to cut off the wife’s share of his pension, but simply that his purpose was to convert it to larger monthly disability benefits, which are tax-free by the way), essentially making it akin to a breach of contract, this could mean the sole remedy of money damages as allowed by the decision would be fully dischargeable in a bankruptcy proceeding by the military spouse. Under the Bankruptcy Code as amended in 2005, only domestic support obligations based on need (11 USC § 523(a)(5)), and a debt to a spouse, former spouse or child that is not a “domestic support obligation” but that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other court order, or a determination made by a governmental unit in accordance with state or territorial law (11 USC § 523(a)(15)) are non-dischargeable debts in bankruptcy’s interaction with family law. A money judgment for damages as a result of the pension waiver, without the fault/ fraud color, arguably would not fall within either of these exemptions from discharge, as it is not need-based and temporally not rendered in the course of divorce or (especially absent an express indemnification clause concerning pension-waiver-for-disability-benefits).

Another area of concern is the fact that many MSA/judgments involving military pensions occur, unlike the facts of Cassinelli, while the member spouse is still in the military and earning credit towards the 20-year vesting period. As such, many cases necessarily involve division orders that do not specify a dollar amount, but rather a set of contingency language about the anticipated future retirement becoming vested with the percentage determined by arithmetically dividing the number of months of CP pension gains by the number of total creditable military service months. Does this mean that, there being no set dollar amount for pension payments to the civilian spouse in those kinds of MSAs, it is more likely to be dischargeable in bankruptcy? Probably, yes. Is it more likely that the lack of express indemnification provision will allow for no equitable remedy at all? Probably also yes.

Conversely, does it mean that a modification of spousal support, if not dollar-for-dollar reimbursement of the out-spouse’s lost pension payment but rather under a 4320 analysis, as an end-around of Cassinelli would be more viable? Likely yes, but because most MSAs do not include judgment-time marital standard of living and other 4320 factors as recited facts, some (perhaps years) after-the-fact determination of what the marital standard of living was at the time of separation will often need to be litigated so that a change can occur. Moreover, what if the non-member’s spouse’s lot in life has improved dramatically through career development, inheritance, or upwardly-mobile remarriage? Those spouses might not receive any form of compensation for their lost pension benefits under a 4320 analysis. And what about all those spouses who agreed to waive spousal support and terminate the trial court’s jurisdiction over the issue? And what about cases that were not settled but instead went to trial, and resulted in a bench decision where the trial court did not consider the pension-waiver-for-disability-benefit possibility and did not include some contingency provision should such a scenario occur in the future? As discussed below regarding the USSC’s decision in Howell, it is possible that aggrieved spouses in such circumstances are likely without any kind of legally-cognizable remedy.

The Howell Decision

In the wake of California’s Cassinelli comes the USSC’s decision in Howell v. Howell (2017) 581 U.S. ____ (a copy of the opinion can be ‘googled’ by entering “USSC Howell,” and otherwise located at https://www.supremecourt.gov/opinions/16pdf/15-1031_hejm.pdf). It was published six months after Cassinelli, in May, 2017.

Howell’s holding is a sweeping bright-line rule effectively gutting equitable remedies as developed over the past 40 years in California: A state court may not order a veteran to indemnify a divorced spouse for the loss in the divorced spouse’s portion of the veteran’s retirement pay caused by the veteran’s waiver of retirement pay to receive service-related disability benefits. In other (and this author’s) words, any remedy sounding in indemnification or reimbursement is a violation of the U.S. Constitution.

An excellent article on Howell entitled “The Death of Indemnification” was published by ACFLS in the Summer, 2017 Journal edition, and was authored by Mark E. Sullivan, Esq. of Sullivan & Tanner in Raleigh, North Carolina (author of the Military Divorce Handbook, a must-own for any family law practitioner who deal with service member divorces). While Mr. Sullivan’s article discusses Howell as a USSC precedent under federal case law, the instant article attempts to deal with Howell in the context of California law, and particularly Cassinelli.

The pertinent, substantive facts of Howell are near-identical to those of Cassinelli: The wife was awarded 50% of the service-member husband’s military retirement pay; the divorce took place in a community property state (Arizona); 13 years after the parties had been receiving military pension pay (50% each), the husband was determined to have a 20% disability, the husband unilaterally and extra-judicially elected to receive VA disability benefits of $250 per month causing a corresponding decrease by waiver of $250 per month to his military pension income; this waiver caused the wife’s one-half of the military pension pay to be reduced by $125 per month.

The Howell opinion began by reasoning that many former military service members elect to waive a portion of their pension income, which is taxable, to receive non-taxable VA disability benefits, this being a logical, economic-maximizing choice allowed by law. It then went on to discuss the legal history of military pension division, and waiver of pension benefits, in community property states, starting with McCarty v. McCarty (1981) 453 U.S. 210 [holding that military pensions were not community property subject to division], Congress’s 1982 response to McCarty with the enactment of the Uniformed Services Former Spouses’ Protection Act [expressly allowing military pensions to be divisible community property, except as to portions thereof waived], and the USFSPA’s interpretation by the USSC in Mansell v. Mansell (1989) 490 U.S. 581 [holding that the pre-judgment waived portion of military pension pay, and any other portion of a military service member’s total retired pay, could not be divided by a California court despite those parties’ express agreement in their judgment to the contrary because Congress only gave a “precise and limited” exception expressly and only to military pensions as being divisible under the USFSPA].

Backtracking to the procedural history of the case, the Howell wife requested the Arizona Family Law trial court to enforce the original decree. It did so. The case made its way to the Arizona Supreme Court, which framed the issue as one of indemnification by reimbursement from the veteran-husband to the wife for pension income the latter lost on account of the former’s choice to waive a portion of the pension for disability income benefits, and upheld the trial court’s decision that such indemnification and reimbursement was lawful.

According to the USSC, the Arizona Supreme Court’s analysis and resulting decision incorrectly turned on the timing of the waiver: Because the veteran-spouse waived/elected disability benefits after (rather than before) the judgment, federal law under the ruling of Mansell did not control or preempt reimbursement and indemnification. Not true according to the USSC which came back with a harsh analysis of the temporal-reasoning supporting the Arizona Supreme Court’s decision (and expressly noted “like several other states” perhaps forewarning California), countering that such “temporal difference” merely meant the Howell wife and the Arizona trial court should have recognized her portion of the pension could be worth less than she thought or expected, because it was based on a contingency such as a veteran-spouse’s subsequent waiver. In other words, the Howell wife’s right to a dollar-amount-certain from the military pension was not truly ‘vested’ in any cognizable sense of the word, despite the Arizona Supreme Court’s characterization to the contrary, because state courts cannot give that which they do not have: Only Congress can mandate what is includible and excludable from the USFSPA in terms of divisible property interests related

to military retirement benefits, and while Congress included military pensions for community property states as dividable, it excluded waived portions thereof.

The USSC went on to rule that state courts should not use nomenclature tricks like “reimburse” and “indemnify” rather than “divide” as to military retirement benefits that are not specifically a military pension because “the difference is semantic and nothing more.” State court attempts to compensate and make whole aggrieved military spouses improperly “displace the federal rule and stand as an obstacle to the accomplishment of purposes and objectives of Congress. All such orders are thus pre-empted.”

The Howell decision effectively holds that there is no valid and direct form of indemnification, such as a state court ordering the former military service member to pay the other spouse a monthly amount to make the other spouse whole (as the wife had requested). Nor can a state court order DFAS to re-apportion the remaining military pension benefits among the spouses, available to such an aggrieved spouse.

The USSC concluded its opinion in Howell by recognizing the “hardship congressional pre-emption can sometimes work on divorcing spouses.” It offered that state family courts can discount the value of military pensions as subject to contingency in the form of waiver. Moreover, they can take account of such potentially reduced value “when it calculates or recalculates the need for spousal support.” But in any event, the Arizona Supreme Court’s decision upholding reimbursement and indemnification was reversed.

Key Takeaways From Howell

First, it seems very dubious that Cassinelli, its decision, and its holding, if reviewed and an opinion becomes published by the USSC, will stand. There is nothing really to distinguish compensation in the form of “money damages” as the sole remedy in California from reimbursement and indemnification in Arizona as it relates to monies lost by aggrieved spouses whose exes have converted military pensions to VA disability and other benefits. California case law on this subject, and its notion of “vested” and indefeasible” rights must be totally scrapped for they are misplaced and the conclusions they have led to are unconstitutional.

Second, all those court orders in California and the other 21 states in this nation sounding in indemnification going back to 1982’s enactment of the USFSPA, except those that increased spousal support predicated on an increased need and/or increased ability to pay, are probably null and void. Oh, what a headache. It is ironic that the trial (but not appellate) court in Cassinelli apparently got it right, at least to the form of remedy (spousal support modification) which does not offend the U.S. Constitution (but may offend 4320 and other statutes such as remarriage terminating spousal support).

This author has racked his brain for viable and effective solutions to the problems for out-spouses facing situations similar to Cassinelli and Howell. One option for the bar’s best practices might be to include express indemnification clauses in every judgment involving military pensions, whether retirement age and eligibility has been reached or not by the parties in a particular case. However, such certainly runs afoul of Mansell, and would result in unenforceable terms for want of constitutionality. Another option would be for bench and bar to have present value calculations of military pensions, and in-kind divide or otherwise equalize that value with awarding other property to, or creating a money judgment in favor of, the non-military spouse. But that runs afoul of Howell and its clear indication that pension rights are not vested other than for past payments and for the month the check is sent out in the mail by the DFAS to the non-military spouse. It probably also runs afoul of California law concerning division of contingent, future benefits. A third possible option is for attorneys representing non-military spouses to bargain-for and include clear recitals of 4320 factors in MSAs that include expectancies of non-vested pension benefits as part of the analysis; perhaps more protective would be contingent language that should such benefits be waived that spousal support shall be increased dollar-for-dollar to the amount lost by the non-veteran spouse (thus creating a contract right and not necessarily requiring a reevaluation of 4320 factors).

Really, a legislative response is required to fix this state of affairs. The 97th Congress did so in 1982 (under a Republican President and Senate, and a Democratic House), and it could do so again today by allowing family courts in community property states to divide military retirements benefits other than pensions. Perhaps the California Legislature might also help the situation by making an exception from full 4320 analysis cases that present military pensions waived in favor of disability benefits. But as things stand, need-based 4320 spousal support modification appears to be the only viable, constitutionally-sound method for practitioners and bench officers working under Cassinelli and Howell, and as a result many military member’s spouses have seen their share of a military pension shrink or disappear, such as those who have remarried, have waived spousal support, or have otherwise improved their circumstances since divorce will have no remedy through the courts of California to recapture the benefits of the bargain they made, and for others the remedy might not result in a satisfying dollar-for-dollar reimbursement (and have high litigation costs barriers to boot – pun intended).

Author: Michael C. Peterson, CFLS

Can Spouses Be Found to Have Gifted Their Share in Community Property to the Other? Problems Affecting SP Residences.

Thurman W. Arnold — Sun, 12 Feb 2017 17:50:00 GMT

Community Property Gifts to the Separate Property of the Other Spouse

When the community estate pays money towards the separate property assets or expenses of the other spouse, is it always entitled to be reimbursed?

Not always. It is possible for a court to find that a contribution in favor of the other spouse on the CP dime is a gift, and so not capable of reimbursement. However, this is an outcome that trial and appellate courts may seek to avoid and it is highly transaction and subject matter specific.

The Common Family Residence Owned by One Spouse Situation

It is not uncommon that when parties marry, one or both spouses already own certain assets like – for purposes of this article – a home. Unless and until the other spouse is added to the title on the home (which is a “transmutation”), that property always remains the SP of the titled owner. There are two situations that commonly arise in such circumstances: 1) there is a mortgage that is paid down with CP funds or earnings during the marriage, along with real estate taxes and home insurance; and/or 2) improvements and/or repairs may be made to the property using joint (CP) funds. In neither situation does the application of these funds change the character of the title and ownership. But under the law as it has evolved over the past 40 years, there is often a right of reimbursement. However, that right can sometimes be waived, or gifted, to the other party.

We’ve written extensively about “Moore-Marsden” (M-M) reimbursements and apportionment. Where community property funds (including the earnings of either party, in the absence of a premarital agreement saying that earnings in the parties’ marriage will not belong to the community estate) are used to pay a mortgage, over time principal is reduced (except as to ‘interest-only’ loans). The property may go down in value, its value may remain flat, or it may appreciate by the time the parties separate and begin to war over identifying and splitting the community pie. M-M holds that unless a right to be reimbursed for these contributions and the resulting increase in net equity in the home has been waived, the CP estate must be reimbursed for its share in the overall acquisition of the property. The amount of the reimbursement will be a ratio function of the increase in equity as represented by the principal reduction and any increase in value. However, for this reimbursement to exist there must be a calculable increase in the net equity of the party claiming the separate property interest as measured from the date of marriage to the date of calculation (for instance, assuming a transmutation prior to separation) or date of separation (where there was never a change in title during the marriage). It is certainly possible that the M-M reimbursement amount will be found to be zero, most obviously where the property’s value has declined. Or in shorter marriages, where little appreciation has yet occurred.

M-M is founded on the idea that CP funds used for the “acquisition” of property should be reimbursed in order to avoid what would otherwise amount to a constructive fraud upon the party who does not benefit from an increase in the other's separate property net, at the expense of the community (or really the spouse's half). Constructive fraud does not speak to “intention”; it is a legal fiction that is imposed in order to protect the financial interests of the disadvantaged spouse, where they did not consent to the outcome. “Acquisition” that may give rise to a reimbursement right is limited to payments that increase equity, and does not include interest, real estate taxes, or insurance.

Where property that is owned by one spouse alone is improved on the community dime, where for instance the spouses or one of them renovates the home, this is not considered to be an “acquisition” in the sense of M-M and those funds play no part in a M-M calculation. There is another avenue for reimbursement for improvements nonetheless, discussed below, although the right to a reimbursement is not guaranteed. It can be effectively waived. Many lawyers fail to analyze whether their facts support a waiver.

Until 1975, husbands under the law had the sole right of management and control of the community property. Yes, as hard as it is to imagine, only 40 years ago California husbands had the exclusive right to make financial decisions affecting their wives’ rights and interests in the parties’ assets. As a consequence and to equalize the playing field, a rule developed that where a husband in managing these assets made the decision to use community funds to improve the wife’s property, it was presumed that he was making a gift of his half of that CP to the wife – and that she owed no obligation to reimburse the husband for any of it. This result did not require any kind of writing or formal waiver by the husband, and could be based upon evidence of “oral transmutations”, i.e., pillow talk.

Note the operative word in the previous paragraph is “presumed.” Presumptions are very important in determining who has the burden of proof on any given issue in CA divorces and family law proceedings, and when they exist in favor of one party they put the other on the defensive to overcome them.

In 1975, Civil Code section 5125 and 5127 were enacted (current Family Code sections 1100 and 1102), to declare that husbands and wives henceforth would share equally in the right to manage and control the community estate. And yet the rule presuming a gift where one spouse used community property to allow the other spouse to “acquire” (or increase) that spouse’s equity position did not go away. It matters which spouse controlled the funds and so made the decision on any given transaction – i.e., that it is not the spouse who owned the separate property whose financial position was being aggrandized, since that party should not have the power to make a gift to themselves. Clearly, those funds should be reimbursed (and indeed the rule is that the reimbursements should be the larger of the actual cash value paid or the value of the enhancement). Generally speaking, community payments made by one spouse that improve the other spouse’s separate property continue to be presumed to be a gift, and in such cases no right of reimbursement-back exists absent proof of an agreement that the contribution would be reimbursed – which can be oral. Marriage of Camire (1980) 105 Cal.App.3d 859. Camire was decided post 1975, and noted the change in the law providing that spouses have equal management and control of the community property, but nonetheless applied the former gift rule, and presumably would have done so if the genders had been reversed.

This gift presumption, though, has been viewed unfavorably by the courts in certain settings, and so its reach has come to be limited. For instance, no gift presumption exists where the CP payments are used to pay a SP mortgage. E.g., Marriage of Moore (1980) 28 Cal.3d 366. Some years after Civil Code section 5125 was enacted, the court in Marriage of Frick (1986) 181 Cal.App.3d 997, 1020, opined “Beginning in 1975, both spouses were granted equal management and control of the community real and personal property, with limited exceptions. (Civ.Code, §§ 5125 and 5127.) However, we do not believe this change in the law should alter the basic principles discussed above. Indeed, we believe the effect of this change should be to place each spouse in the same position as the husband was before 1975. If either spouse appropriates community funds for his or her own benefit, without the consent of the other spouse, the community should be reimbursed. Even if in theory both spouses have an equal right to management and control, if one spouse acts in his or her self-interest to the detriment of the community interest, the community should be entitled to restitution.” (The Frick husband managed the community assets. However, the wife was denied a reimbursement because she failed to present evidence that husband had in fact used CP funds to make the relevant expenditures, or their cost/value).

The gift presumption has been further eroded. In Marriage of Wolfe (2001) 91 Cal.App. 4^th 962, apparently dealing with a situation where the husband controlled certain joint funds and used them to improve his own separate real estate property with the installation of a drip agricultural system, the court refused to apply the gift presumption to SP improvements made with CP funds. It ruled: “There is little logic in a rule that presumes an unconditional gift when one spouse uses community funds to improve the other spouse's property. Husbands and wives rarely plan for dissolution of a marriage, and if they did, it is fanciful to suppose that a spouse would wish the divorcing partner to walk away from the marriage with property enriched by an infusion of community funds and with no obligation to reimburse. The presumption is simply not grounded in human nature or experience. Nor is it in accord with public policy, which presumes acquisitions during a marriage to be community [citation omitted], and disfavors changes in characterization without strict adherence to formalities; this ensures thoughtful deliberation before decisions with potentially far-reaching consequences are made. [Citation omitted] As we explained, our courts do not indulge such a presumption when community funds are used to assist in the purchase or to reduce an encumbrance on a separate asset. The application of community funds results in what amounts to co-ownership of the asset. [Citation omitted]. There is no reason to presume a gift when funds are applied to improve separate property."

The Gift Doctrine, However, Is Not Yet Dead

Despite Frick and Wolfe, the gift presumption is still on the books and even if there is no presumption, you might be able to win the gift argument if there is a sensible reason explaining why the spouse managing the community made the contributions to the other's SP, supported by evidence of an agreement. Neither case said that funds applied to improve separate property cannot be a gift, but only that the transaction would not be presumed to constitute a gift. Circumstances remain where a party may be able to prove that a gift was intended, based upon an oral agreement.

By the way, it certainly remains the rule that one spouse can make a gift of their own separate property to the separate property of the other spouse without a right to reimbursement later, and that they are presumed to do so in a number of different types of transactions (most commonly where a spouse pays joint credit card debt with separate property). People are understood to more likely intend a gift when the thing they give up belongs to them alone, and the reason for protections against self-serving transactions are not implicated to the same degree (although one can always claim undue influence) when one is managing their own property only.

Winning at the trial court level will, as usual, probably be a predicate to winning on the gift issue on appeal. Or, when this issue gets revisited by the appellate justices in the future, the gift rule may go bye-bye, at least insomuch as the facts apply to CP contributions to SP, as opposed to SP contributions to the other's SP.

Author: T. W. Arnold

Divorce and Family Law Second Opinions | Best Second Opinion Feedback Supporting Attorneys and Their Clients!

Law Office of Thurman W. Arnold — Sat, 28 Jan 2017 04:20:00 GMT

Family Law and Divorce Case Second Opinions - New Paradigm for 2017!

Thurman Arnold III introduced the second legal opinion for dissolution and non-marital family law cases on this website about 10 years ago, which only became economically efficient with the advent and the popular use of the Internet. Since then we've done scores of second opinions, supporting self-represented parties and those with counsel in cases pending throughout California, and particularly beyond Riverside and San Bernardino counties - where our family law practice is located.

Both Michael and Thurman love doing second opinions. We are obsessed with evaluating and weighing in on complex legal and situational circumstances and we passionately care about the experience of not only parties to divorce, but of their attorneys as well. Mr. Arnold is an imperfect student of Zen, and wants to alleviate divorce suffering wherever we may be of value. If you are a reader of our Enlightened Divorce Blog™, you have likely noticed that we try to go beyond simply restating legal principles by offering tips and how-too's based upon our experience and insights. Thurman was licensed to practice family law in 1982. He and Mike are Certified Family Law Specialists. Thurman is Fellow of the American Academy of Matrimonial Lawyers. Our enthusiasm and sincerity has been demonstrated by the some 1,800 pages you will find on this website. If you've not searched this site for the free answers that we've already written about, we urge you to do so because maybe there's no need to speak with us at all (start with the search engine at the upper right of each page)!

We endeavor to take the high road in empowering our readers by what we publish on this website. But it is hard for a reader to ask a blog or website page a question, or it interpret and relate information to specifics of one's own circumstance. We want to weigh in on your concerns more directly if you wish it, to help you with the twists and turns you may be facing, and to see that you avoid the cul de sacs that the experience and practice of family law commonly include.

The landscape of California family law is insanely and destructively complex to navigate safely and alone. Whatever side of the relationship equation you find yourself on, your position is much improved when we pool our minds to fashion creative and astute solutions. Sometimes it is the judges whom you must overcome or the terrible inefficiencies of the courts. Sad to say, in many ways success hinges on a struggle between "just folks" and the adversarial family law system itself. This is why Thurman is an avid mediator.

We Decided in December, 2016 to Experiment With Reducing Costs for Second Opinions

Michael Peterson and Thurman decided last year to find a way to make second opinion professional help more affordable to litigants and their attorneys. We began an experiment to test whether we could reach more folks if we reduced our rates this month to see if this would resonate for a larger audience.

It did.

Given that many folks, though not all, have counsel and that those attorneys may be participating in our discussions and so must bill their clients, in order to reduce the overall cost for second opinion parties with lawyers we are going to continue to offer second opinions at $375/hour for Thurman, and $300/hour for Michael, with a two-hour minimum. We can afford to do this because we do not become your attorneys, or your attorneys of record - we just hope to surgically assist you on limited issues. This avoids overhead costs for us that lawyers, like any business professionals, must build into their rates, and so justifies for us smaller fees. We want to offer a discount that incentivizes you to reach out to us!

Please understand - we find we usually have to spend at least an hour or two reviewing your pleadings, case history, and your notes and emails, and even doing legal research, before our conferences in order to size up the situation and so give our most competent feedback. Our experience is that at least an hour (but often more than that, LOL) is required to understand most case histories. Rarely do we see phone conferences lasting under an hour. For that reason, we have to enforce a 2 hour minimum charge. However, we are willing to fix a maximum charge even if your matters takes up more than 2 hours of prep and consult time, where to do so is fair to you and us in terms of how complex your issues really are. In other words, we aren't going to surprise you with charges that you did not expect.

For the attorneys among us, we want to support you. We are not interested in poaching clients or undermining anyone. More heads are better than a few. In fact, we may well help reinforce your own conclusions about case management, the realities of which are sometimes hard from parties to divorce and family law to hear and accept. Other times, together we might come up with creative and productive strategies that are novel or not readily apparent, which favorably alter the course of the proceedings.

If this sounds like it may be value to you, please contact Kristin Jensen at our office, and we can get this started. Our aim is to complete all 2nd Opinion conferences within two weeks of you contacting us!

Author: The Thurman Arnold Law Firm

Second Opinion Review

"SMART, EXTREMELY KNOWLEDGEABLE & PROFESSIONAL!! I did an independent second opinion consultation w/Mr. Arnold and it was invaluable to me with respect to my divorce case, which is a complex matter. Prior to speaking with him, I felt very lost in the whole process especially when faced with a spouse who has had the upper hand in divorce litigation. After speaking with Mr. Arnold, I am now armed with the information, tools and strategy to hold my own in court and in the defense of my divorce case. Mr. Arnold was also very realistic and honest in answering my questions, thoroughly discussing the advantages and possible pitfalls to each issue. I also find his pricing to be very fair and you get great value for the quality services provided."

Google Review by a highly intelligent, self-represented, CA attorney, 1/2017

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