Kern County Divorce Filing | Who Should Pay? –

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A California Court of Appeals has ruled that a Trial Court was not wrong by deciding that a lender had not written-off the balance of a line of credit on the parties’ family home and thus, deducting the balance of the line of credit from the value of the family home which was awarded to Mother. Trial Court was also not wrong, according to the Appellate Court, by sanctioningFather for failing to make the required disclosures to Mother about another house, by declining to order reimbursement of property taxes paid by Father, or by its orders regarding other community property assets. In the case of In re Marriage of Gutierrez, Mother and Father were married in 2001, and subsequently had two children. In 2006, they bought a house in Hacienda Heights(Family Home), financing the purchase with a loan of $204,000 from Washington Mutual.

After Mother and Father separated in 2008, Mother and the kids remained in Family Home. Also, during marriage, Mother and Father bought property in Havasupai, Arizona, for $135,000.

After the parties separated, Mother was unable to keep up the payments on the Family Home, the value of which had dropped, and she stopped making payments on the mortgage and the line of credit. When Chase Bank acquired Washington Mutual, it referred Mother’s delinquent loans to a collection agency, which pursued Mother for payment of $170,000. Mother lacked the funds to pay, but she was able to negotiate with the bank to forestall foreclosure. Mother began making payments of $700 month in 2011, and was able to bring both loans current.

Meanwhile, in 2008, Trial Court ordered Father to sell the Arizona property and pay Mother half of the proceeds to alleviate the financial distress she was under from Father’s lack of financial support. Father sold the property in 2011, but he did not tell Mother and kept the sale proceeds of$38,000 for himself.

At their 2015 divorce trial, Father called two witnesses to testify in support of his claim thatChase Bank had written-off the loans on the Family Home. A mortgage bank Research Officer repeatedly claimed that the loans had been written-off, but on cross-examination by Wife’s attorney, he admitted that he was unclear as to when in 2009 the write-off occurred. ResearchOfficer also could not explain why Mother was still making payments on the loans in 2013, if they had been written-off in 2009, and he admitted that he had no documentation regardingMother’s agreement with the bank. Research Officer stated that the bank’s policy was to refund payments made after a loan was charged off, but he did not know why Mother had not received any such payments.

Father’s other witness, a tax preparer and paralegal, testified that he concluded that the write-off had occurred from his interpretation of documents given to him by Father. This witness also had no explanation for the bank’s accepting of Mother’s monthly payments if the loans had been written off.

As the trial progressed, Trial Court found that Father had breached his fiduciary duty to Mother by concealing an asset when he failed to disclose the existence of another house in Rosemead on his Preliminary Declaration of Disclosure and his Final Declaration of Disclosure. Trial Court ordered sanctions for the breach of fiduciary duty pursuant to California Family CodeSection1101 and Section 271.

Other evidence revealed that Father failed to share the proceeds from the sale of the Arizona property until the time of trial, some three years later. Father claimed that he had used the funds to pay property taxes and balances on joint credit cards, but he provided no documentation of those payments. Nonetheless, Father sought reimbursement of $3,578 for his tax payment.

Father made other allegations concerning Mother’s sale of a jeep and an old all-terrain vehicle, her conversion of a watch belonging to him, and Mother’s retention of $20,000 to $30,000 worth of tools he had left in the garage.

After the trial concluded, Trial Court issued a lengthy and detailed statement of decision in which it determined that the loans on the Family Home had not been written-off and deducted the remaining balance of $171,099 from the value of the Family Home awarded to Mother, and repeated its sanctions order. Trial Court declined to order reimbursement for the taxes Father paid on the Arizona property because it would be unfair and unreasonable to do so, givenFather’s failure to pay Mother’s share of the sale proceeds for three years, leaving her in financial straits and in fear of losing Family Home. Trial Court found that Father’s other contentions regarding the vehicles sales, his watch, and his tools were not supported by the evidence.

F appealed, but California Court of Appeals has now issued a ruling affirming Trial Court’s decisions. The Appellate Court has ruled that (1) Father’s contentions regarding the loan write-off fail because they are not supported by the record [Father’s two witnesses could not explain why Mother had been paying on the loan and the bank had not returned her payments to her when that is the bank’s policy when someone makes a payment they should not have made; they also admitted that they got their information from Father; and they had not seen the agreement for payment between Mother and the bank]; (2) Trial Court did not err in ordering sanctions under California Family Code Section 271 and Section 1101, which are intended to spur good conduct and full disclosure between divorcing parties (not as redress of injury) [Father had argued that it didn’t matter that he didn’t disclose it on his Disclosures because Mother knew about the other property]; (3) Trial Court did not abuse its discretion by failing to order reimbursement on equitable grounds (Mother was left to struggle financially while Father sat on the sale proceeds) where the court order clearly required him to pay Mother her share of the sale proceeds within a reasonable time; and (4) substantial evidence supported Trial Court’s ruling on the other allegations (tools left in garage; his watch; and vehicles). 

Family Law Lawyers Bakersfield CA | When Husband Owes Rent to Wife

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A California Court of Appeals has ruled that Watts charges [a party having sole use of both parties’ community property asset, i.e., home, after separation can be charged for that party’s sole use, i.e., reasonable rental value of the home] may be ordered against Husband where Husband lived in his separate property house after the parties’ date of separation and Moore/Marsden formula gave the community a beneficial interest in the house because payments during the marriage were made with community property funds. In the case of In re Marriage of Mohler, Husband bought a house for $168,000, taking title in his sole name in February of 1995, prior to the parties’ marriage. Husband and Wife were married in September of 1998. They lived in the House until they separated on July 2, 2011. The payments on the House were made with community property funds [the parties’ earnings during the marriage] until that date. The principle reduction on the mortgage loan on the House was reduced during the parties’ marriage to the tune of $56,557. After they separated, Husband lived in the House and paid the house payments with his separate property funds [his earnings after the parties’ date of separation].

At trial in 2017, Trial Court valued the House at $530,000. The parties agreed that the Moore/Marsden formula [when community pays for one party’s separate property House during the marriage, the community gets reimbursed based on principle reduction of the loan on the House and appreciation in value of the house during the marriage] should be used to calculate the community property interest in the House acquired by making the mortgage payments. Using that formula, Trial Court calculated that the community property interest amounted to 33.66%, or $172,684 (appreciation value plus mortgage principle reduction). However, Wife argued that the community property interest must be increased to 64.9% to include the six (6) years that Husband lived in the House after the parties’ separation. In essence, Wife was arguing that she had to wait for six (6) years to receive her community property share in the House while Husband was solely enjoying the House and thus, her community property interest should be increased.

Trial Court agreed and re-calculated the community property interest under the Moore/Marsden formula at $332,944, which included Husbands separate property payments of $52,482 [payments he made on the mortgage after the date of separation]. Husband appealed and now the California Court of Appeals has vacated Trial Court’s order and has remanded the case back to Trail Court with directions as to how to resolve the case.

The Appellate Court has ruled that (1) by making payments on Husbands separate property House with community property funds [parties earnings during the marriage], the community acquired a beneficial interest in House the amount of which is calculated by the application of the Moore/Marsden formula;(2) the community ceases to acquire a beneficial interest in a spouses separate property when community property payments stop or date of separation occurs; (3) Trial Court erred by applying the Moore/Marsden formula beyond the date of separation after which Husband made house payments with his separate property [his earnings after the date of separation]; and (4) if any compensation is due to the community by reason of Husbands living in the House after the parties separation, it must be calculated as Watts charges. According to the Appellate Court, where, as here, the community does not own the property outright but instead maintains a beneficial partial interest in the property due to a Moore/Marsden calculation, Watts charges may be applied. Therefore, the Appellate Court has remanded the case back to Trial Court for further proceedings in line with this opinion.

Party Wanting to Change Custody Must Show Changed Circumstances

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A California Court of Appeals has ruled that Trial Court was not wrong in finding that lack of changed circumstances defeated Mothers request for change of custody. It has further held that prior judges comments regarding what could constitute changed circumstances in connection with permanent custody orders are not binding on the judge who presides over a new request for modification of that order.

In the case of Anne H. v. Michael B., Mother gave birth to Fathers child in 2009. Less than a year later, Father left the armed services, but Mother stayed in. Father moved in with Mother, who was going to law school, and began attending grad school. When Father finished school, he got a job in the Bay Area. Meanwhile, both Mother and Father had sole care of Child for brief periods, while the other was away. During those times, Mothers parents and sister helped to care for Child. Mother completed law school in 2012, and in August of 2012, she was posted to Georgia as a JAG officer. Mother and Father agreed that Child would stay with Father until they could agree on a custody plan.

In February of 2013, Father filed a petition in Santa Clara County Superior Court for full custody of Child. Soon, Mother filed a paternity action in San Mateo County Superior Court and Father dismissed his petition. In August of 2014, after a short trial, Trial Court issued a lengthy statement of decision, in which it awarded Mother and Father joint custody of Child and ordered Child to spend the school year with Father and summer vacations with Mother. This judge based his custody determination on Mothers ability to stay with her parents and other family when visiting Child, the benefit to Child of continued stability in her custody situation, and the likelihood that Mother would be posted to various locations. Trial Court stated that the presence of Mothers family members in the Bay Area was the most significant factor and commented that Mothers family members moving from the Bay Area would constitute a change of circumstances requiring a new analysis of the ongoing custodial timeshare between the parties.

In May of 2015, Mother filed a request for custody modification, seeking custody of Child during the school year, citing her new posting (to last for 5-6 years) and claiming that her parents move to a home near hers in Virginia constituted a change of circumstances under the existing custody order. Mother attached copy of a grant deed showing that her parents and brother had bought a Virginia property, but her parents did not file declarations. Mother also alleged that Father failed to permit her parents to have access to Child. In opposition, Father stated his belief that the grandparents had retained ownership of their Bay Area house and continued to live there. Father denied failing to cooperate with the grandparents requests for visitation, and claimed that Mothers job gave her greater flexibility to visit Child in the Bay Area than his did for visiting Child in Virginia. Father also sought California Family Code Section 271 sanctions of $15,000 to cover the attorneys fees he incurred in responding to Mothers five ex parte (emergency) applications for custody between 2013, and 2014. Father claimed that Mother could afford sanctions of that amount because of her earnings. In response, Mother claimed that she no longer had relatives with whom she could stay in the Bay Area and denied that her financial position was that rosy.

After the hearing on Mothers custody request, Trial Court found that Mother failed to show significant changed circumstances and denied her request. Trial Court also imposed Family Code Section 271 sanctions of $5,000 on Mother.

Claiming that Trial Courts denial of custody change was inconsistent with prior custody order and the sanctions order was an abuse of discretion, Mother appealed. Now, in a partially-published opinion, the California Court of Appeals has affirmed Trial Courts rulings. The Appellate Court has ruled that (1) the first Judges comments regarding potential change of circumstances if Mothers family moved from Bay Area are not binding on the next Judge (there is no res judicata [that which has already been decided] or collateral estoppel because those statements did not relate to the issue of current custody arrangements before Trial Court when they were made); (2) the first Judges comments were not the type of ruling that cannot be altered by succeeding Judge; (3) giving binding effect to those comments would mean that succeeding Judges could not consider current circumstances in deciding whether to order custody modification (prior judge could not know what circumstances would be important when modification is requested); and (4) in this case, the second Judges finding of no changed circumstances was not an abuse of discretion (substantial evidence supported Fathers belief that Mothers parents had not actually relocated, insufficient evidence showing that custody change would be in Childs best interests, and many family members remained in Bay Area).

In the unpublished part of the opinion, the Appellate Court has noted that the sanctions request was based on a background of other purportedly litigious conduct by Mother and that sanctions order was justified on the basis that her conduct frustrated settlement. In addition, evidence showed that the $5,000 order was not an unreasonable financial burden on Mother.

Parental Rights of Father Terminated for Abandonment

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In the case of In re A.B., Mother and Father met in November of 2005. They lived together for four years, during which Father used both alcohol and pot. When Mother learned that she was pregnant, she broke up with Father and moved out. In November of 2009, Mother gave birth to their Child. Father was not present for Childs birth, but arrived three hours later with a pizza and a request to hold Child. Father was not named as Childs father on Childs birth certificate.

After Childs birth, Father tried to give Mother a $50 money order, and to buy baby food, but Mother rejected both offers. After that, Father did not see Mother and Child until January of 2010, when he spent two hours with them. Soon thereafter, Mother contacted the Department of Child Support Services, seeking to have Father pay child support. In September of 2010, after a paternity test determined that Father was Childs biological father, Trial Court issued a child support order, which Father paid consistently through wage garnishment. However, Father did not obtain the health insurance for Child that Trial Court also ordered. Meanwhile, Father occasionally attempted to see Mother and Child, but was unsuccessful. Father obtained the necessary forms to seek a Trial Court visitation order, but never followed through, apparently because he lacked the $400 filing fee.

In April of 2013, Mother began dating Husband. A few months later, Husband became involved in [Childs] care, and later began supporting Mother and Child financially. Child called Husband Daddy and became very bonded to him. Mother and Child moved in with Husband in the fall of 2014, and Mother and Husband subsequently married. Meanwhile, after Mother had a falling out with her family, Father sent Mother a letter in which he told her that he would seek visitation with Child by the time Child turned five.

In October of 2014, Father filed a request for visitation, claiming that he had cleaned up his act and wanted to develop a parental relationship with Child. Father also contended that Mother should permit Childs Grandmother to visit Child and to let him visit with Child at Grandmothers house. After Mother and Father participated in mediation, Trial Court ordered a therapist to monitor Fathers introduction to and visitation with Child. During several therapy sessions, Father and Child developed a minimal relationship.

In March of 2015, Husband filed a petition to terminate Fathers parental rights and to adopt Child. Father reluctantly met with a Social Worker, who recommended against termination of his parental rights after concluding that Father had no intent to abandon Child and had not done so. However, at the hearing on Husbands petition, Social Worker testified that during Fathers lengthy absence from Childs life, Husband had stepped in to provide stability and continuity for Child, specifically during the past two years. Social Worker also saw a connection between Fathers request for visitation and Mothers failed relationship with Grandmother. Father and Mothers family members testified about Fathers many unsuccessful attempts to contact Mother by letter and phone. Mother testified that Father called her periodically, but never asked for visitation, and admitted changing her phone number, but leaving her old voice mail. Mother said she did not return many of Fathers messages because she didn’t want to encourage Father to hope for resumption of their relationship. When the hearing concluded, Trial Court found that Mother was the more credible party, Fathers testimony suggested that he did not show any active interest in visiting Child before 2014, Father failed to have meaningful contact with Child for a period of more than one year and paid only sporadic support, and Childs relationship with Husband supported a finding that adoption would be in Childs best interests. Claiming, among other things, that Trial Court should have considered only the preceding year in determining whether Father abandoned Child, Father appealed, but a California Court of Appeals has reaffirmed Trial Courts decision.

The Appellate Court has ruled that (1) as pertinent here, California Family Code Section 7822(a)(3) provides that a Trial Court may terminate the parental rights of a parent who has left his or her child in the other parents custody for a period of one year without communication and with the intent to abandon the child; (2) neither that statute nor the applicable case law provides that the one-year period has to be the year immediately preceding the filing of the California Family Code Section 7822 petition; (3) Fathers failure to make more that token efforts to communicate with Child for well over the one year period support Trial Courts finding of abandonment (need not be evidence of intent to totally abandon Child); (4) there is substantial evidence that Husbands adoption of Child would be in Childs best interests; and (5) Trial Courts finding that Indian Child Welfare Act did not apply in this case is not supported where one tribe out of four tribes who were contacted failed to respond until after termination judgment, but that error is harmless because there is no reasonable probability of a more favorable result.

Husband Investing Community Funds Without Telling Wife Breached His Fiduciary Duty to Her

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A California Court of Appeals has ruled that a Trial Court was not wrong when it concluded that Father breached his fiduciary duty to Mother by transferring funds in excess of the amount to which Mother agreed into an Ameritrade account, without Mothers knowledge, and then losing several million dollars in unsuccessful trades. The Appellate Court has also ruled that the amount of asset to which the breach of fiduciary duty applies is not measured by its highest value during the breach.

In the case of In re Marriage of Kamgar, Mother and Father were married in May of 1990, and later had four children. During their marriage, Mother, who had a joint law degree and masters degree in taxation, worked at the Depository Trust Company and at another time, for a well-known law firm. Father, who had a B.S. degree in Electrical Engineering and Computer Science from U.S.C. and an M.B.A. from U.C.L.A., ran various businesses. Once those businesses sold, that allowed him to stop working in January of 2003. By the time that Mother and Father separated in January of 2013, Mother had not worked outside the home in 20 years.

Beginning in 1999, Mother and Father had their substantial liquid assets managed by a series of professional managers at JP Morgan, Merrill Lynch, and Bessemer Trust. Those managers were instructed to pursue conservative investment strategies that would preserve the couples assets. Mother then left the basic management and control of those assets to Father, who made all of their investment decisions, but didnt always consult Mother in making them.

In 2010, Father got interested in options trading, and began doing research, attending investment classes, reading trade publications on the topic, and talking with other investors. By that time, Father had been investing community property funds in Apple, Inc. stock for about seven (7) years. When Father discussed opening a self-directed trading account with Mother, Mother consented to it. She agreed that Father could deposit $2.5 million of their Apple stock into the account so that Father could try his hand at doing something that he would find interesting or amusing. Mother believed that this sum was just a sliver of their net worth and Father figured that he could lose that much without detrimentally affecting their lifestyle.

In December of 2011, Father transferred 6,000 shares of Apple stock into a newly opened TD Ameritrade account, then applied for an upgrade that would allow him to engage in enhanced margin trading. Ameritrade required both Father and Mother to demonstrate their financial knowledge and awareness of trading risks before it would authorize the enhancement. Believing that Mother was not interested, Father signed Mothers name on the application, took the test in her place, and falsely represented that Mother had extensive trading experience. Father listed the couples goals as growth, income, and conservation of capital, but not speculation. Father later changed the terms of the account to eliminate the need for Mothers signature to make withdrawals or transfers to the account. During the following 13 months, Father converted the Apple securities to cash, deposited more than $8 million of community property funds into the account, along with almost all of the community property funds under professional management. Father then assumed full control of the community property assets.

The value of the Ameritrade account went up and down between December of 2011, and January of 2013, when Father stopped trading. By that time, there was only $409,000 left in the account, which had reached a high of $19 million at one point (before Father withdrew more than $3 million). Meanwhile, Father kept telling Mother that the account was doing fine. However, the marriage wasn’t, and the couple had been living in separate houses and seeing a marriage counselor for several months. When Mother told the counselor that she knew nothing about the couples finances, the counselor advised her to start asking questions.

In January of 2013, Father texted Mother that they needed to meet face to face to discuss financial challenges. Mother balked at meeting in person and told Father to conduct the discussion by text messages. Father finally texted Mother with the distressing news that they were running out of money, due to investment losses and high expenses, and urged her to sign papers to sell property at Emerald Bay. Outraged, Mother replied that this was a disaster about which Father had not told her and reminded him of his assurances that he was being prudent in his option trading. The couple then formally separated and began divorce proceedings.

At trial, Mothers expert opined that Fathers option trading was so highly speculative, particularly for lack of diversification, that it amounted to gambling. Fathers expert countered that Father had relied on other analysts who had predicted a rise in Apples stock value and denied that Fathers strategy was grossly negligent. In a detailed statement of decision, Trial Court found that Father had breached his fiduciary duty to Mother by failing to disclose investment transactions he made in the Ameritrade account between December of 2011, and January of 2013, that Mother had agreed to only the initial $2.5 million deposit to that account, and that Father had additionally breached his fiduciary duty by his grossly negligent mismanagement of the community property assets in the trading account. Trial Court awarded Mother $1,952,056 as her community property share of the funds Father lost through undisclosed and reckless trading. Father and Mother both appealed, but now the Court of Appeals has affirmed Trial Courts decisions.

The Appellate Court has ruled that (1) pursuant to California Family Code Section 1100(e), spouses owe a fiduciary duty to each other that requires full disclosure of all material facts and information regarding existence, characterization, and valuation of community property assets and debts; (2) spousal fiduciary duties set forth in California Family Code Section 721(b) also include provisions of California Corporations Code dealing with disclosure duties of partners where there has been no demand for disclosure; (3) those statutes do not require, as Father contends, frequent and continuous updating regarding assets and debts; (4) California Corporations Code Section 16403(c)(1) describes spousal disclosure requirements as governed by their partnership agreement; (5) here, Mother and Father agreed that Father could risk $2.5 million in options trading; (6) Father breached his fiduciary duty by risking more than that amount without disclosing his actions to or consulting with Mother; and (7) Trial Court was not required to calculate the amount owed to Mother from Fathers breach based on the peak value attained by the Ameritrade account, but rather its value at the date of the breach (the date that Father transferred an additional $8 million without Mothers knowledge or consent).

Pre-Nuptial Agreement Drafted by Husband Not Enforceable Against Him Because He Didn’t Have an Attorney & Seven Days to Review It

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A California Court of Appeals has ruled that a pre-nuptial agreement initially drafted by Husband, but later revised by Wife’s attorney, is not enforceable against Husband, who was not represented by an attorney and did not have at least seven days to review the final version before he signed it. The Court also ruled that the statement in the pre-nuptial agreement that the parties each had the seven-day review period before they signed it is not binding against an unrepresented party.

In the case of In re Marriage of Clarke and Akel, Husband and Wife, set their wedding date as March 7, 2008. On February 26, 2008, Husband, using a downloaded form as a guide, drafted a pre-nuptial agreement which, among other things, provided that Husbands separate property house would remain his separate property after the marriage, but Wife would acquire a 2% interest in that home for each year of their marriage, and that the home would become community property after seven years of marriage. The pre-nuptial agreement also provided that Wife and any children would have a lifetime tenancy in Husbands home.

Husband then retained an attorney to represent Wife in the negotiation and execution of the pre-nuptial agreement, but he did not believe he needed an attorney himself and thus, he did not seek advice from an independent counsel. Husband emailed a copy of his draft pre-nuptial agreement to Wife’s attorney on February 29, 2008, and followed it up with a revised draft on March 3, 2008, which contained the same provisions regarding his home. Wife’s attorney reviewed the draft and made notes regarding certain issues.

On March 4, 2008, Husband, Wife, and her attorney met to discuss the pre-nuptial agreement. Wife’s attorney advised Husband to seek an independent counsel, but Husband said he was able to represent himself. The attorney then met separately with Wife to explain the provisions of the agreement and its legal effect. The attorney also asked Husband about his understanding of the term divorce in connection with Wife’s acquiring a two percent (2%) interest in Husbands home and also discussed whether Husband intended to waive his right to California Family Code Section 2640 (reimbursement of his separate property contribution to purchase of community property) if his home became community property after seven years.

On March 5, 2008, Wife’s attorney sent Husband and Wife each copies of the revised pre-nuptial agreement, to which he had added several provisions regarding the parties waiver of their separate property interest in community property, including Family Code Section 2640 reimbursement, Husbands specific waiver of reimbursement regarding his home, and Husbands obligation to pay all expenses on the home during Wife’s lifetime tenancy. The revised pre-nuptial agreement also contained a statement that each party had had more than seven days to review the pre-nuptial agreement before signing it. Husband and Wife signed this pre-nuptial agreement on March 6, 2008. Husband also executed a separate written waiver of counsel, stating that Wife’s attorney had advised him to retain separate counsel, and acknowledging that Wife’s attorney represented only Wife.

Husband and Wife separated in 2013 or 2014 and began divorce proceedings. Wife sought to enforce the pre-nuptial agreement giving her a lifetime tenancy in Husbands home, but Husband contended that the agreement was not enforceable. After trial, Trial Court determined that the pre-nuptial agreement was not enforceable because Husband was not presented with the final version at least seven days before he signed it, as required by California Family Code Section 1615(e)(2) and was also unenforceable under Family Code Section 1615(c)(3) because Husband had not received a written advisement of the rights he was giving up under the pre-nuptial and had not signed a written waiver of those rights. Wife appealed, but California Court of Appeals has now affirmed Trial Courts decision.

The Appellate Court has ruled that (1) Family Code Section 1615(c) provides that a pre-nuptial agreement will be considered to have been executed involuntarily (and thus unenforceable) if, among other things: (a) the party against whom enforcement is sought had less than seven days to review it and be advised to seek independent counsel before signing it, (b) an unrepresented party against whom enforcement is sought was not fully informed of the terms and basic effects of the pre-nuptial agreement as well as the rights and obligations he or she would give up on signing it; (c) the explanation of relinquished rights and obligations was not memorialized in writing and delivered to the unrepresented party, who must then execute a declaration of having received the writing and by whom the information was given; and (d) the agreements and writing were executed under duress, fraud, or undue influence or by parties who were not competent to enter into them; (2) here, Husband was not presented with the final version of the pre-nuptial or advised to seek independent counsel at least seven days before he signed it; (3) the statement in the pre-nuptial agreement that the parties had seven days to review the agreement does not save the agreement from being unenforceable because the underlying policy for the seven-day review period (protection of unrepresented parties) would be thwarted if it could be invalidated by a boilerplate provision; (4) the pre-nuptial agreement is also unenforceable under Family Code Section 1615(c)(3) because Husband did not receive a written advisement of the rights and obligations he was giving up in signing the pre-nuptial and did not execute a written waiver of those rights (Husbands waiver of right to counsel does not meet those requirements); and (5) the fact that Husband did the initial drafting of the pre-nuptial does not extend the seven-day review period or indicate that he was aware of or advised of the rights and obligations he would be giving up and it does not constitute a written waiver of them. The Court of Appeals has thus ruled that Trial Court did not err in concluding that the pre-nuptial agreement was unenforceable for lack of compliance with Family Code Section 1615 (c)(2) and (3).

Husband is the Father of the Child and Not the Biological Father Who Was Wife’s Boyfriend

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A California Court of Appeals has ruled that a Trial Court was not wrong in concluding that biological father who sought to establish a parental relationship with his biological child did not qualify as her presumed father because he failed to receive her into his home as required by California Family Code Section 7611(d). In order to meet the receiving requirement, biological father needs to show that he assumed parental responsibilities, not just that child was occasionally present in his home.

In the case of W.S. v. S.T., Mother and Father were married in 2002. Later that year, Mother gave birth to their Son. Mother and Father separated in 2006, at which time Mother filed for divorce and they began living apart. During their separation, in 2007 or 2008, Mother met Boyfriend at work and began a relationship with him. Boyfriend believed that Mother was divorced and lived with her mother.

In 2008, Mother became pregnant with Daughter. She would later state that she had reconciled with Father and was living with him when Daughter was conceived. She told Boyfriend she was pregnant, but that the child was not his; he apparently accepted the news without question. During Mothers pregnancy, Father went to prenatal classes, drove Mother to the hospital when she was in labor, and was present and cut the umbilical cord when Daughter was born. Fathers name appeared on Daughters birth certificate as her father. Father also took several weeks of parental leave to help Mother with Daughters care after she was born. Father also said that he helped care for Daughter, changing her diapers, washing her laundry, and rocking her to sleep. When Mother ceased breast-feeding Daughter, Father helped prepare the baby’s bottles. Daughter slept with Mother and Father until she was four and a half years old.

Meanwhile, not long after Daughters birth, Mother began to suspect that Boyfriend was Daughters biological dad based on her features. Unbeknownst to Father, Mother and Boyfriend got a DNA testing kit at the drugstore, and the results confirmed Mothers suspicions. They did not tell Father, who still believed he was Daughters father. As years went by, Mother and Boyfriend had a tumultuous relationship, but Mother allowed Boyfriend and Daughter to see each other fairly regularly and to take trips with Boyfriend, his mother, and Mother. She and Boyfriend broke up and resumed their relationship numerous times. In July of 2014, Mother finally told Father about her relationship with Boyfriend. Father promptly filed for divorce.

On August 22, 2014, Boyfriend filed a petition to establish a parental relationship with Daughter, claiming that he was her biological father, seeking joint legal and physical custody and visitation, and asking that Daughters last name be changed to his. In response, Mother claimed that Daughter was not Boyfriends daughter, that her relationship with Boyfriend took place before she became pregnant, that Daughter was born during her marriage to Father and while they were living together. Father moved for joinder, contending that he was a necessary party in the action because he was conclusively presumed to be Daughters father under California Family Code Section 7540. Mother filed a declaration stating that she was cohabiting with Father when Daughter was conceived and asserting that the Family Code Section 7540 presumption trumped Family Code Section 7611(d) presumed fatherhood presumption.

At the hearing on October 21, 2014, Trial Court first determined that Father was a necessary party because of the Family Code Section 7540 presumption and granted Fathers motion for joinder. Trial Court then considered whether Boyfriend qualified as a presumed father under Family Code Section 7611(b) [received child into his home and held child out as his own]. Boyfriend testified that he saw Daughter almost every day between 2009, and 2010, that Daughter stayed overnight at his apartment once or twice a week, and that he made bottles for her by putting a scoop of formula and some warm tap water into the bottle. Boyfriend also stated that he began feeding Daughter chopped cooked vegetables when she was between six and nine months old. Boyfriend testified that he saw less of Daughter after she began going to daycare. When she started preschool in 2013, Boyfriend claimed that she used his last name, he paid for a years tuition, and he and Mother frequently picked her up. Daughters teacher confirmed that Boyfriend participated in school activities, attended parent-teacher conferences, and was called Pa or Daddy by Daughter. Boyfriend also said he had given birthday parties for Daughter at ages three, four and five, had taken her on trips with Mother, and celebrated numerous holidays with her. Boyfriend admitted that he did not have Daughter on his health insurance plan and did not know any of her doctors or dentist. However, he said he paid Mothers cell phone bill and gave Mother money every once in a while.

Mother testified that Boyfriend exaggerated the closeness of his relationship with Daughter, actually saw Daughter only once or twice a week for brief visits, and had only one overnight visit with Daughter when she was an infant. Mother refuted Boyfriends claims regarding feeding Daughter, saying she would not have permitted Daughter to drink formula from unsterilized bottles and did not start Daughter on solid food until she was between one and two years old, when she began eating pureed food (not chopped veggies). Mother admitted that Boyfriend paid for half of Daughters preschool tuition, went with her to pick up Daughter from preschool, and had Daughter over to his apartment to play after school. She also admitted going on trips with Boyfriend and Daughter, and taking Daughter over to Boyfriends on Daughters birthdays, Christmas, and Halloween for trick or treating. In addition, Mother asserted that Boyfriend hid Daughters toys when she was not there, so that relatives did not know of her existence.

Father testified that Daughter was home at night for all but a few nights, and could not have been with Boyfriend as often as he claimed without Fathers noticing. Father told Trial Court that he was very involved in Daughters life, put her on his health insurance, scheduled her dentist appointments, and saw to her basic needs. He said he was not extensively involved in Daughters preschool, which he believed that Mother paid for. Father admitted filing for divorce when he learned of Boyfriends relationship with Mother and Daughter, but asserted that he and Mother were working on their marriage and were not going forward with their divorce when Boyfriend filed his petition.

On March 19, 2015, Trial Court issued a statement of decision, denying Boyfriends requests for custody and visitation and concluding that Boyfriend had not qualified as a Family Code Section 7611 presumed father because he had not received Daughter into his home, as required by that statute, had regular visitation with Daughter, or assumed parent-type obligations and duties. Claiming, among other things, that Trial Court did not apply the proper standard in determining whether he had received Daughter into his home, Boyfriend appealed. But, now, California Court of Appeals has issued a ruling affirming Trial Courts decision.

The California Appellate Court has found that (1) the receiving into your home requirement in Family Code Section 7611(d) requires more than the child’s physical presence in biological fathers home; (2) biological father must have demonstrated a parental relationship based on his having assumed parental responsibilities, showed his commitment to the child, and provided support for the child (Trial Court correctly used this standard); (3) Trial Court was not wrong by considering some of the same factors that it would have used to determine whether Boyfriend was Kelsey S. father (when an unwed father promptly demonstrates a full commitment to his parental responsibilities, he is entitled to the recognition of his real parental relationship absent a showing of unfitness); (4) Trial Court was also not wrong in declining to order visitation for Boyfriend as an interested non-parent or a parent (Boyfriend is only biological father, not natural parent); (5) Boyfriends constitutional claims fail because he did not discuss them at trial and did not have a protected liberty interest in establishing a parental relationship with Daughter; and (6) Boyfriends claim of bias has no merit (Trial Courts finding Mother credible did not constitute bias).

Husband’s Spousal Support Obligation Should’ve Been Terminated Since Wife Failed to Show Up to the Hearing

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A California Court of Appeals has ruled that Wife’s Income and Expense Declaration was inadmissible hearsay where Wife was not present to be cross-examined at the hearing on Husbands motion to terminate his espousal support obligation and she had filed no response. According to the Appellate Court, Trial Court abused its discretion by failing to terminate Husbands espousal support obligation and basing its order for reduced espousal support on Wife’s Income and Expense Declaration.

In the case of In re Marriage of Swain, Husband and Wife were married in July of 1994, and separated in October of 2005. On February 13, 2007, Trial Court filed their stipulated divorce judgment which provided, among other things, that Husband would pay Wife espousal support of $2,600 per month and that Wife is expected to be self-supporting by January 2008. If she was not, the judgment provided that Trial Court could attribute $2,500 per month to her as her earning ability.

Husband filed unsuccessful motions to modify or terminate espousal support in 2008 and 2009. On December 30, 2016, Husband filed another Request For Order, seeking to terminate espousal support. In his supporting declaration, Husband stated that he was retiring and that Wife would begin receiving her share of his retirement benefits in an amount close to the amount of espousal support he was now paying. Wife was served on May 2, 2017, but she did not file a response or make an appearance at the hearing. Trial Court then continued the hearing to June 13, 2017, and ordered the parties to file Income and Expense Declarations at least 10 days before that date. Wife did so, but filed nothing else with the Court.

At the hearing, Husbands attorney objected to Wife’s Income and Expense Declaration because Wife was not present to be cross-examined as to its content and had not asked that it be put into evidence. Trial Court responded Okay. All right. Trial Court then accepted a letter from Calper’s, stating that Wife’s monthly payments from Husbands retirement benefits were $2,630 per month, effective December 31, 2016. Husband testified about the various physical ailments that prevented him from doing his job and precipitated his retirement at age 56. Husbands counsel then asked Trial Court if Wife’s Income and Expense Declaration would be received as evidence. Trial Court replied that the Income and Expense Declaration was filed, but I wasn’t going to look at it.

On June 14, 2017, Trial Court issued a Statement of Decision in which it found that Husbands retirement was voluntary, that his medical issues did not affect his ability to earn, and that his retirement was insignificant in light of the marital standard of living. Trial Court also found that Husband had shown a material change of circumstances in Wife’s income, since she would be receiving the retirement payments. After considering the appropriate California Family Code Section 4320 factors (all the listed factors that the court must consider in ordering or modifying a long term espousal support), Trial Court looked to Wife’s Income and Expense Declaration to determine her need for support, noting that it was executed under penalty of perjury and could be considered testimony, but its weight would be limited due to Wife’s unavailability for cross-examination. Trial Court then reduced Husbands espousal support payments to $750 per month, but declined to terminate espousal support.

Claiming that Trial Court erred by considering Wife’s Income and Expense Declaration where she was unavailable for cross-examination, Husband appealed, and now a California Court of Appeals has agreed with Husband and has reversed Trial Courts decision. The Appellate Court has ruled that (1) Family Code Section 217 precludes Trial Court from considering Wife’s Income and Expense Declaration (it is inadmissible hearsay) where Husband sought to exclude it and Wife was not available for cross-examination; and (2) Trial Court lacked sufficient evidence to determine Wife’s need absent inadmissible Income and Expense Declaration (it had only Husbands evidence regarding her retirement benefits). The Appellate Court has ruled that Trial Court erred by considering Wife’s Income and Expense Declaration to determine her need for support and abused its discretion by ordering any espousal support and declining to terminate support. The Appellate Court has reversed Trial Courts support order and terminates Husbands espousal support obligation.

Father Allowed to Talk about the Divorce Case and Bad-mouth Mother on Facebook

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A California Court of Appeals has ruled that wording in a Domestic Violence Prevention Act restraining order that prohibits Father from posting anything about the parties divorce on Facebook is an overbroad and invalid prior restraint on Fathers constitutional right of free speech and must be removed from the order. In the case of Molinaro v. Molinaro, Mother and Father were married in 1997, and they ended up having three children together. On July 11, 2016, Mother filed for divorce. At that time, two of the children were still minors.

On January 6, 2017, Mother filed an ex parte application for a Domestic Violence Prevention Act (DVPA) restraining order against Father. In her supporting declaration, Mother stated that on January 1, 2017, her siblings and friends were helping her move out of the family home, when Father got into a verbal altercation with them. After Father moved his car to block the moving van from backing out of the driveway, Mother called police, who eventually detained Father. Mother then finished moving out. Mother also stated that Father had restrained her from leaving the family home on two prior occasions, and that Fathers erratic behavior had caused her to put locks on her bedroom door out of fear. Father, she said, then told her that if she didn’t remove the locks, he would throw a chair through the bedroom window. Mother expressed fear that Father would retaliate after she moved out and reported that Father had already found where she now lived and was posting the address and a picture of the house on the internet.

Mother asked Trial Court to issue a Temporary Restraining Order requiring Father to stay 100 yards away from her and Children and to order Father to attend a batterer intervention program. Mother also sought sole custody of their minor children.

Trial Court declined to order a Temporary Restraining Order, citing lack of sufficient proof, and scheduled a hearing for January 26, 2017. At that hearing, Father sought a continuance, which Mother did not oppose. Mother asked Trial Court to order Father to stop posting everything about the divorce on Facebook and stop giving Children copies of Mothers pleadings. When Trial Court questioned Fathers reasons for giving minor children copies of the pleadings, Father replied that it was his best judgment. Trial Court then advised Father that it would issue an order prohibiting him from discussing the case with the minors. At that time, Father made allegations regarding Mothers behavior, stated that he understood the order, but question[ed] the sanity. Trial Court then clarified that Father was precluded from posting on Facebook any posting that would violate the no-discussion order.

At a continued hearing on February 15, 2017, Mother testified that Father was still posting on Facebook about the divorce case, and had sent police to her home on a wellness check when she was at work. Mother stated that some of Fathers postings accused her of wrongfully removing community property, called her crazy, and claimed she was having hallucinations. Mother also testified that Father sent her and her attorney emails with vulgar salutations and name calling, all of which caused her fear and stress. Mother claimed that Fathers behavior was getting worse and worse. Father declined to cross-examine Mother, but asked that Children be allowed to testify. Trial Court denied that request, granted a three-year restraining order to Mother, and ordered Father to stay 100 yards away from Mother and all three Children, and not to post anything on Facebook . . . in regards to this action.

When Trial Court asked Father if he understood the order, Father claimed not to, called trial judge insane, and claimed that the order lacked evidentiary basis and reason. Trial Court then questioned Mother and Father regarding custody and visitation, but opined that mediation, which Mothers counsel sought, would not be productive at this time because of Fathers behavior. Father then demanded to know what behavior Trial Court was discussing, at which point the bailiff warned Father to stop yelling. In response to Trial Courts order for monitored visitation, Father refused to cooperate in finding a professional monitor. Trial Court then ordered Father to attend anger management classes, which further upset Father, who made several disrespectful and sarcastic comments to Trial Court, to no avail. In a written attachment to the restraining order, Trial Court ordered the parties not to post anything about the case on Facebook and not to discuss the case with the children.

After moving unsuccessfully for a new trial, Father appealed from the restraining order and, in a partially-published opinion, California Court of Appeals reverses in part and affirms in part Trial Courts decisions.

In the published part of the opinion, Appellate Court found that (1) in the case of Candiotti (1995) 34 Cal.App.4th 718, the appellate court held that a custody order that limits parents right to communicate with third parties about custody matters was an unconstitutional prior restraint; (2) here, as there, the part of the restraining order that prohibits Father from posting information about the case on Facebook is overbroad (not narrowly tailored to limit speech that relates to Children or disparaging Mother); and (3) that part of the restraining order is overbroad, constitutes an invalid prior restraint of Fathers free speech rights and must be removed from the order. Therefore, Appellate Court reversed that part of the restraining order with directions to Trial Court to strike it from the order and affirms the rest of the order.

In the unpublished part of the opinion, the Appellate Court found that Trial Courts finding of abuse is supported by substantial evidence; Father forfeited his contention that the DVPA is void for vagueness by failing to raise the issue at trial; and Trial Court did not err by including Mother and Fathers adult daughter as a person protected by the restraining order.

Father must Pay Half of Daycare Costs Even If Mother’s Choice to Further Her Education Is Voluntary and Not Required by Her Employer

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In reversal of a Trial Court, a California Court of Appeals has ruled that California Family Code Section 4062 permits an award of childcare costs to a parent who is currently employed with marketable skills, but seeks to improve those skills through education in order to become self-supporting and not need public assistance. In the case of Greiner v. Keller, Trial Court entered a judgment in 2015, that, among other things, awarded sole legal and physical custody of Mother and Fathers minor Child to Mother, and required Father to pay one-half of reasonable childcare costs for Child.

In May of 2018, Mother sought an order, per Family Code Section 4062, forcing Father to pay one-half of reasonable childcare costs incurred while Mother attended classes and participated in computer courses at the public library, all aimed at becoming a paralegal. In her supporting declaration, Mother stated that she was laid off from a government job in 2011, after which she was able to find only temporary or part-time positions as a notary and office assistant, mostly in law offices. Mother believed that acquiring additional skills would help her get full-time employment and she would no longer need public assistance for housing and food.

In opposition, Father argued that Family Code Section 4062 did not authorize an award of childcare costs where a parent had existing job skills that enabled him or her to secure employment. Father pointed out that Mothers current employer was not requiring her to pursue additional training; it was her personal choice to do so.

After a hearing, Trial Court found that Mothers request exceeded the requirements of section 4062 which does not apply where a parent has existing skills and was able to gain employment. Accordingly, Trial Court denied Mothers request.

Mother appealed, and now, the California Court of Appeals has reversed Trial Courts decision. Deciding this issue for the first time, the Appellate Court has ruled that (1) the plain language of Family Code Section 4062 permits Trial Court to make an order for shared childcare costs related to a parents employment or for reasonably necessary education or training for employment skills; (2) the statute does not limit its scope to parents who do not have existing skills sufficient to enable them to find employment; (3) the case of Khera & Sameer (2012) 206 Cal.App.4th 1467, on which Trial Court relied, is inapposite because it involved a request for elective education by a parent who could be self-supporting but chose not to work; and (4) this case exemplifies why the Legislature enacted section 4062. Therefore, the Appellate Court reverses Trial Courts denial of Mothers request and sends the case back to Trial Court with directions to reconsider it on its merits, including a determination of whether Mothers educational efforts were reasonably necessary, Mother had actually incurred childcare costs, and the amount and appropriate apportionment of those costs.