Month: May 2020

A California Court of Appeals has ruled that Trial Court was wrong in reducing the child support obligation of a high earner where salary reduction did not materially impair his ability to pay current child support amount because his other wealth more than made up for the reduction; Trial Court imputed too low a rate of return on his many millions in assets.

In the case of In re Marriage of Usher, Mother and Father were married in 2006; their child was born in February 2006. During the marriage Father, a successful director and producer earned $4.25 million per year; Father also had substantial assets in cash, investment funds, and real and personal property. Mother and Father separated in 2008.

In October 2009, Trial Court entered the parties stipulated divorce judgment which provided, among other things, that Father would pay child support of $12,500 per month, would permit Mother and Child to live in his Pacific Palisades home until June of 2010, and would pay an additional $5,000 per month for child support after they moved out. Father was also to pay spousal support of $15,329 per month to Mother for two years (October 2009, through September 2011), after which Mother waived any further right to spousal support. The judgment stated that Father was a high earner under Family Code Section 4057(b)(3), that the child support amount deviated from guideline, that Childs needs would be adequately met by the chosen amount, and that the parties had arrived at the amount with the aid of attorneys and accountants. In June of 2010, Mother and Child moved into another house in the same Pacific Palisades area, which rented for $7,500 per month, and Fathers child support payments increased to $17,500 per month.

In June of 2014, Father filed a request to reduce his child support payments to $5,184 per month, plus a percentage of any income earned above $841,272 per year. Father claimed to be earning substantially less now ($70,106 per month instead of $350,000 per month) and that the requested amount was arrived at by DissoMaster (the program that calculates California child support guideline), using his current salary, minus insurance and property taxes, and a 30% timeshare for Father. In opposition, Mother contended that Fathers salary reduction was not a material change of circumstances because he had numerous alternative sources of income and assets from which to pay child support. Before the hearing, Father conceded that Trial Court should impute some income from his other assets and contended that a rate of return of 1% would be reasonable in the current financial climate. Fathers CPA claimed that Father was against tying up his assets for long periods and was pursuing a very conservative investment strategy. Mother contended that Fathers investments should yield a 4.5% return.

At the hearing, CPAs for both parties testified regarding Fathers income, Fathers investment income and the rate of return, and the amount of income to be imputed to Mother. When the hearing concluded, Trial Court found that the reduction in Fathers salary constituted a material change in circumstances, imputed a 4.5% return on Fathers non-income producing assets (anticipated property sales) and a 1% return on his other investments (Fathers average for last five years). Trial Court calculated Fathers monthly income at $140,000 and Mothers imputed income at $3,343 per month, deducted property taxes on Fathers Montecito home of $6,000 per month and came up with a child support order of $9,842. Trial Court also ordered Father to pay Ostler and Smith (a percentage) child support on any earned income of more than $1,681,692 per year, plus Childs private school tuition, medical insurance premiums, medical expenses not covered by insurance, and 85% of Childs costs for extracurricular activities. Claiming that Trial Court erred by reducing child support and imputing a rate of return on Fathers investments that was too low, Mother appealed.

Now, California Court of Appeals has reversed Trial Court. The Appellate Court has ruled that:

(1) Where a child support order is arrived at by a stipulated divorce judgment, Trial Court must consider the parties intent and their reasonable expectations when making a reduction;

(2) This Stipulated judgment stated that current child support payment was necessary to meet the Childs needs and support him in accordance with Fathers lifestyle;

(3) At the hearing, Father presented no evidence that his salary deduction made him unable to pay the current child support amount;

(4) The reduction in income, standing alone, is not a sufficient change of circumstances to support a child support reduction where payor is still able to meet his obligation with income from other assets;

(5) The parties agreement that the current child support order was necessary to meet Childs needs was evidence that a child support reduction would cause Childs needs to be unmet (Father failed to show that Childs financial needs had diminished);

(6) Evidence did not support imposition of a 1% rate of return on Fathers investment portfolio; and

(7) Trial Courts imputing an unreasonably low rate of return on Fathers investments resulted in a child support order that deprived Child of funds to support the lifestyle that Father had agreed was appropriate and could easily afford to provide.

A California Appellate Court has ruled that a Trial Court did not err in declining to order severe cut in child support payments where Father was a very high earner, Mothers major source of income was child support, and Mother had minimal timeshare. The Appellate Court further ruled that enabling Mother to maintain current housing and living standard was in Childs best interests. In the case of In re Marriage of Cryer, Mother and Father, both actors, were married in 2000. Mother gave birth to Fathers child in June of 2000. In April of 2004, shortly after Father completed his first season as costar of a major sitcom, Mother and Father separated. In December of 2004, Father helped Mother buy a condominium. Mothers last acting job was in 2005. In early 2006, Trial Court entered a stipulated divorce judgment that obligated Father to pay child support of $10,000 per month and gave Mother 65% timeshare with Child, while Father got 35%.

From December 2004, to May 2009, Child lived mostly with Mother. Meanwhile, both Father and Mother remarried. Mother and her new spouse had a child in January of 2007, but separated in March of 2009, and later divorced. In May of 2009, Father filed an ex parte application for sole custody of Child, claiming that Mother left Child unsupervised and not properly cared for. Trial Court denied Fathers application, but warned Mother not to leave her children unattended.

In late May of 2009, Mothers second child suffered an injury at Mothers home, causing Los Angeles County Department of Children and Family Services to file a dependency action, remove both children from Mothers care, place Child with Father, and place Mothers second child with her former Husband. Mother then filed a motion to have Father pay her attorneys fees in the dependency action, but Trial Court denied that motion.

On August 3, 2009, Father filed an Order to Show Cause asking for reduction of his child support obligation to zero, contending that Mothers reduced timeshare (she had only short monitored visits) and the Childs placement with him meant that his child support payments were supporting Mother and not the Child. In opposition, Mother pointed out that Fathers child support payments were only 3% of his income, and claimed that visitation orders in ongoing dependency action were only temporary. Without Fathers payments, Mother said, she would lose her house and car and be unable to pay her bills, all of which would harm Child. In his Income and Expense Declarations, Father reported an income of $327,000 per month, liquid assets of $7 million, and monthly expenses of $29,000, while Mother reported “negligible average income and liquid assets” and expenses of $10,000 per month. Mother stated that child support from Father was “her only significant source of income.”

On December 3, 2009, Trial Court issued a statement of decision which kept Fathers child support payments at $10,000 per month until January 2010, when they would decrease to $8,000 per month. Trial Court found that because Juvenile Court dependency action was in its early stages, Juvenile Court could modify Mothers custody and visitation arrangements at any time, and that it was in the Childs best interests to return to the same home he had shared with Mother prior to Juvenile Court action and to have regular contact with Mother. Trial Court also found that Father was extraordinarily high earner, making guideline award unjust and inappropriate. Trial Court ordered Father to pay $20,000 toward Mothers attorneys fees, told Mother “to pursue gainful employment,” and scheduled further hearing.

After Father was served with the statement of decision, he moved for reconsideration. Father followed that up with another Order to Show Cause, seeking an accounting of Mothers use of child support payments he had made since June 1, 2009, or alternatively, an order requiring those payments to be paid into a trust account. Father asserted that Mother was using those funds to pay her attorney in dependency action. After the February 2010 hearing on both filings, Trial Court made some technical changes to the statement of decision, but found no legal authority to order either an accounting or payments to a trust account, and denied those requests. Trial Court ordered Father to pay $5,000 to Mothers attorney.

Prior to the scheduled review hearing, Father filed a supplemental points and authorities, arguing that Mother had failed to look for gainful employment and was not awarded additional visitation or custody rights, and asking for stay of child support payments until she was. Father submitted an updated Income and Expense Declaration, showing an average income of $474,000 per month. In her responsive pleadings, Mother claimed that Father was under-reporting his income, that her visitation rights had been modified to allow home visits with Child, and that she needed child support to maintain her home. Mother reported zero monthly income and more than $13,000 in monthly expenses. At the review hearing on May 10, 2010, Trial Court found no changed circumstances since the November 2009 hearing, stated again that Childs best interests required Mother maintaining her current home, and denied Fathers request for downward modification. Trial Court ordered Father to pay $40,000 more toward Mothers attorneys fees.

Claiming that Trial Court erred in ruling on his initial and subsequent modification requests and by denying his request for accounting or payment of child support to a trust account, Father appealed. The California Court of Appeals has now affirmed Trial Courts decisions. With respect to Trial Courts initial modification order, the Appellate Court finds that Trial Court did not err by reducing child support to $8,000 per month because of potential for quick change in custody and visitation through Juvenile Court order, special circumstance of great disparity of incomes, and Trial Courts focus on child’s best interests. The Appellate Court notes that Fathers extraordinarily high income entitled Child to more than guideline support (even if it benefitted Mother) and the support order ensured that Child could continue to live in familiar surroundings.

With respect to Trial Courts denial of accounting or trust, the Appellate Court, relying on In re Marriage of Chandler (1997) 60 Cal.App.4th 124 [abuse of discretion to impose trust that restricts recipients use of child support funds], finds that Trial Court did not err by denying Fathers “somewhat audacious request” because Fathers request for accounting was based on speculation and imposition of trust would have undermined Mothers attempts at reunification and harmed the Child. The Appellate Court also finds that Fathers pleadings did not contain sufficiently detailed information and evidence to warrant extreme measure of imposing trust.

With respect to Trial Courts denial of Fathers second modification request, the Appellate Court determines that Trial Court did not err by finding no material change of circumstances and refusing to order modification.

With respect to attorneys fee awards, the Appellate Court concludes that Trial Court did not err in making fee orders because Father failed to show that orders were abuse of discretion. According to Appellate Court, Trial Court carefully and thoroughly analyzed issues, and significant disparity in parties incomes which supported the fee orders to ensure that Mother was not “litigated out of the case” by Fathers greater ability to finance barrage of litigation.

Distinguishing the cases of In re Marriage of Haines and Mathews, a California Appellate Court has ruled that a Trial Court did not err in finding that the family home acquired in Fathers sole name in order to qualify for a better loan rate was parties community property and for ordering Father to convey the family home to Mother and him as tenants in common. According to the Appellate Court, Fathers failure to abide by his promise to put Mothers name on the title after the purchase was violation of his fiduciary duty and constituted constructive fraud.

In the case of Starr v. Starr, Mother and Father had two children during their marriage. When they sought to buy their family home in Glendora in late 1996, their lender told them they could qualify for a better interest rate if Father took title to the home in his name alone. Father provided $50,000 of his separate property funds for down payment on the family home, while Mother quit-claimed her interest in the home to Father before the close of escrow.

Represented by counsel, Father filed for divorce in April of 2004. His divorce petition listed family home as parties community property, but asked for reimbursement of his separate property contribution to its acquisition. In 2005, Father and Mother stipulated to child-support order based on DissoMaster calculation. Later, Mother and Father discovered that the calculation was incorrectly based on four children. In 2006, Trial Court modified child-support order to correct that error and reserved for trial Fathers request for reimbursement of $3,112 overpayment.

At trial, Father, represented by new counsel, argued that family home was his separate property, testifying that he and Mother always intended that it would be his separate property because he supplied the $50,000 down payment. Father stated that Mother quit-claimed her interest because of that understanding, but admitted that property taxes and mortgage payments were made with community property. Mother testified that she quit-claimed her interest because of lenders advice, and that Father told her he would add her name to the title later. Mother said she did not worry when Father failed to do that because she believed that family home was theirs and she trusted Father. On cross-examination, Father admitted saying at deposition that hed taken title in his name on lenders advice. Father claimed not to remember whether his former attorney reviewed with him the details of his divorce petition, and said he probably hadnt read it before he signed it.

In a statement of decision, Trial Court found that family home was community property and Father was entitled to California Family Code Section 2640 reimbursement of $50,000 down payment, and ordered Father to convey family home to himself and Mother as tenants in common. Relying on, among others, In re Marriage of Mathews (2005) 133 Cal.App.4th 624 [substantial evidence that Wife signed quitclaim freely and voluntarily trumps presumption of undue influence in Fathers taking sole title to family home during marriage] and In re Marriage of Haines (1995) 33 Cal.App.4th 277 [Husband exerted undue influence to get Wife to sign quitclaim deed to family home], Trial Court found that Mother did not sign quitclaim freely and voluntarily, but did so because of lenders suggestion. Trial Court also determined that current child-support order was inadequate, increased it, and denied Fathers request for reimbursement of previously overpaid child support.

Father appealed, but California Court of Appeals has affirmed Trial Courts decision. The Appellate Court finds that (1) neither Haines nor Mathews is applicable here; (2) critical distinction between Mathews and this case is that in Mathews, Wife “assumed” that Husband would put her on the deed, while here, Father “told” or “promised” Mother that he would do so; (3) under California Family Code Section 271 [spouses have fiduciary duty towards each other], where spouse uses confidence or authority to obtain unfair advantage, he or she breaches confidential relationship, triggering presumption of undue influence (coercive persuasion not necessary); (4) Mother quit-claimed her interest in family home in reliance on Fathers promise and her trust in him as her husband; (5) Fathers failure to add her name to title was constructive fraud and undue influence, constituting breach of fiduciary duty; (6) Trial Courts finding regarding Mothers free and voluntary execution of quitclaim was ambiguous; (7) Trial Court did not err in awarding Father $50,000 reimbursement under Family Code Section 2640; and (8) Trial Courts ruling regarding reimbursement for overpaid child support was not abuse of discretion.

United States Tax Court has ruled that although a divorce judgment entitled Father to claim dependency exemptions for his two children, he may not do so because Mother refused to sign I.R.S. Form 8332 Release of Exemptions. In the case of Nixon v. Commissioner, Washington State resident, Father, was divorced from his wife in 2002. Their divorce judgment provided that Mother would be the custodial parent of their minor children and Father would pay child support for the children. It further provided that Father would be entitled to claim federal income tax exemptions for one child every year and for the other child in odd-numbered years if he was current in his child support payments. It also required both parents to sign federal income tax dependency waivers. Father was current in his child support payments during 2007. When he filed his federal income tax return for the tax year 2007, he claimed both dependency exemptions for the two children, along with the child tax credits. He attached I.R.S. Form 8332 to his return, along with copies of three letters to the I.R.S., stating that Mother had refused to sign the I.R.S. Form 8332 and that she had claimed dependency exemptions on her 2007 return, in violation of the provisions of their divorce Judgment.

Unmoved, the I.R.S. disallowed Fathers dependency exemptions and his child tax credits. Father petitioned the U.S. Tax Court for relief, but the Tax Court has now ruled in favor of I.R.S. In its ruling, the Tax Court has found that (1) the children are not Fathers qualifying children because they did not live with him for more than one-half of the tax year 2007; (2) the children are not Fathers qualifying relatives because Father failed to show that he provided more than one-half of their support or that they were not the qualifying children of another taxpayer (for example, Mother); (3) Mother refused to sign I.R.S. Form 8332 or its written equivalent; (4) Father may not claim dependency exemptions for children because they are not his qualifying children or qualifying relatives and Mother, as custodial parent, has not released exemptions; and (5) Father may not claim child tax credits for children because they are not his qualifying children. Tax Court expresses sympathy for Fathers position and acknowledges that stringent I.R.S. rules work hardship on deserving taxpayer such as Father. However, Tax Court concludes that it is bound by those rules and statutes to enter decision for I.R.S.

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A California Appellate Court ruled that Trial Court erred by dismissing a divorce case sua sponte on the basis that the dismissal would be in the best interests of Wife who was judged incompetent due to dementia and Alzheimer. In the case of In re Marriage of Straczynski, Wife filed for divorce in August of 2005. Her divorce petition stated that she and Husband were married in 1950. Husbands response stated that they were married in 1986 and that Wife lacked full awareness of what she was doing because she suffered from dementia and Alzheimers disease. Sometime later, Trial Court, after interviewing Wife, determined that she had sufficient capacity to decide that she wanted a divorce. In November of 2005, Husband and Wife stipulated that Wife would enter assisted living program. In June of 2006, Trial Court, per stipulation of the parties, ordered the sale of the parties family home, closing of a business, and placing of restrictions on movement of funds.

In May 2007, acting on Husbands motions, Trial Court found that parties 1986 prenuptial agreement was enforceable, divided the proceeds of the family home sale equally, ordered Husband to make an equalizing payment of $265,000 to Wife, and required Husband to pay (as spousal support) no less than $500 per day to cover costs of Wife’s care and medications. Trail Court followed those orders up in January 2008, with orders that Husband pay $18,000 per month for Wife’s care, plus arrearages of $57,813.

Meanwhile, in a concurrent conservatorship action, Probate Court appointed conservator for Wife. In June 2007, finding that Wife was not competent to be in an attorney-client relationship, Probate Court appointed a guardian ad litem for her. When Probate Court appointed successor conservator in April 2008, it specifically stated that successor conservator had standing to litigate Family Law Trial Court matters on Wife’s behalf. In December 2008, conservator filed an application for priority trial date in the divorce case, along with a request that Trial Court order parties to comply with state and local statutes regarding disclosure declarations. In opposition, Husband asserted that Wife was making noticeable progress since being moved to another residential care facility, was regaining some competency, and now did not want divorce. Husband claimed that Wife’s attorney was moving the case to completion for “no apparent reason.”

On March 2, 2009, after discharging his attorney, Husband, now in pro per, filed a motion to dismiss the divorce case on ground of reconciliation. In supporting declaration, Husband claimed that Wife’s conservators and attorneys had prevented him from visiting her, but he was finally able to do so in December of 2008. Husband said he had visited with Wife over a four-day period, during which Wife recognized him as her husband, was very affectionate with him, and told him that she loved him. Husband clarified that he was not claiming that Wife was competent, only that she knew she was married to him and was happy with him. Husband also submitted declaration from family friend who observed visits between Husband and Wife and agreed that Wife knew Husband was her husband and was loving and affectionate with Husband. Husband also included a declaration from the owner and administrator of Wife’s care facility, who seconded Husbands claims of improvement in Wife’s condition, affection between Husband and Wife, and Wife’s awareness that Husband was her husband.

In a response filed on Wife’s behalf, her conservator argued that Husbands request for dismissal was not supported by statutes or evidence, and that the dismissal would mean that support orders would cease. In report submitted in connection with Husbands motion, conservator urged Trial Court to place conditions on any dismissal, including issuing of permanent support and arrearages orders, requiring Husband to make full disclosure of his assets, ordering Husband to return his personal financial accounts and property assets to California from Nevada, and barring Husband, his nominee, or his daughter from seeking appointment as Wife’s conservator. Conservator asserted that these conditions were necessary to protect fees and costs orders in the conservatorship to the tune of $252,835.

At the hearing on April 24, 2009, Trial Court began by asking how the divorce would “advance the ball” for Wife. After receiving answers from parties and/or their representatives, Trial Court said it believed that the divorce was not in Wife’s best interests because (a) Wife would be better off financially if the divorce was dismissed (because of the prenuptial agreement), (b) Wife’s main concerns (as an elderly lady with dementia) were Husband and her conservator and not courtroom matters, and (c) Wife’s needs could be adequately addressed in conservatorship action. Trial Court stated that Husbands motion lacked merit because evidence did not show that Husband and Wife had reconciled. It also found no evidence that irreconcilable differences had caused irremediable breakdown of their marriage. Besides, Trial Court believed that case law precluded granting a divorce to a person under conservatorship. Trial Court then, sua sponte, dismissed the divorce case and vacated the pendente lite support orders. Conservator promptly filed a motion to vacate and a notice of appeal.

After Trial Court took motion to vacate off calendar, Conservator amended the appeal to include denial of that motion. Now, California Court of Appeals has reversed and remanded the case back to Trial Court with directions. The Appellate Court has found that Trial Court erred by (1) failing to provide notice that it intended to dismiss the divorce case sua sponte or an opportunity to respond; (2) failing to issue an Order to Show Cause and set a hearing regarding dismissal; (3) dismissing the divorce case on basis of Wife’s best interests and prejudging evidence before hearing it; and (4) failing to follow procedure in the case of Higgason (1973) 10 Cal.3d 476 [Trial Court must make finding that conservatee has necessary capacity to make considered judgment to dissolve the marriage]. The Appellate Court reverses and remands with directions to Trial Court to issue an Order to Show Cause regarding Wife’s current capacity to exercise judgment and express wish to dissolve her marriage due to irreconcilable differences. The Appellate Court tells Trial Court to proceed with the divorce if Wife has necessary capacity, but dismiss if Wife lacks that capacity.

A California Court of Appeal has ruled decedents second wife is personally liable to his first wife for continuing spousal support payments up to the fair market value of real property (including joint tenancy property) he and second wife held at time of his death. In the case of Kircher v. Kircher, Husband married his first wife (Wife-1) on December 10, 1960; they separated on February 13, 1970. In June 1976, Husband and Wife-1 signed a Marital Settlement Agreement that, among other things, required Husband to pay Wife-1 spousal support of $700 per month until the death of either party or Wife-1s remarriage, divided their community property assets and debts, and required Husband to make an equalizing payment to Wife-1 of $124,000 at the rate of $1,100 per month. Husband also agreed to will to Wife-1 his half interest in real property on Eddy Street in San Francisco. That Marital Settlement Agreement was apparently incorporated into their divorce judgment.

In Mary of 1987, Husband and Wife-1 signed a stipulation to modify their divorce judgment to provide that Husbands spousal support obligation would increase to $2,000 per month on February 1, 1987 and continue until Wife-1s remarriage, her cohabitation for 30 days in a “marital-like relationship,” or her death. Husband also agreed to buy or lease a new car for Wife-1 every five years and to provide health insurance for her under same conditions, as spousal support payments.

Husband married his second wife (Wife-2) in July of 1998. On November 11, 2004, Husband signed a new will that left Wife-2 several real properties and leasehold interests. Later, Husband transferred title to three of those real properties to himself and Wife-2, as joint tenants.

In January 2005, Husband died. Wife-2 subsequently sold two of the joint tenancy properties for net proceeds of more than $6 million. On July 11, 2005, Wife-1 filed creditors claim against Husbands estate in Probate Trial Court for past and future obligations under the 1987 modification of the Marital Settlement Agreement and the divorce judgment. Wife-2 made monthly spousal support payments to Wife-1 until April 2008, after which she paid only Wife-1s health insurance.

On May 16, 2008, Wife-1 filed a complaint against Wife-2 personally and in her capacity as Husbands executor, claiming that Wife-2 was personally liable for Husbands debts under Probate Code Sections 13550-13552 and seeking an award of damages and attorneys fees for breach of the modified Marital Settlement Agreement. Wife-1 followed up on October 7, 2008, with an amended complaint seeking a declaration that Wife-2 was obligated, as Husbands executor and personally, to comply with provisions of the modified Marital Settlement Agreement. In opposition, Wife-2 filed a motion for determination that Wife-1 could not seek payment from joint tenancy properties because surviving joint tenant takes property free of creditors claims. In response, Wife-1 explained that she was not seeking a lien on those properties, but wanted imposition of personal liability for continuing support payments up to their fair market value.

After a hearing, Trial Court denied W-2s motion, finding that pursuant to Probate Code Section 13351, a surviving spouses liability for decedent spouses debts is limited to the fair market value of parties real property community property and decedents separate property at the time of death, including joint tenancy property. After the bench trial, Trial Court determined that Husband knowingly and intentionally waived provisions of California Family Code Section 4337 [spousal support obligation terminates on death of either party or supported spouses remarriage] when he executed the modified Marital Settlement Agreement. Therefore, the obligations set forth in that document survived his death.

After moving unsuccessfully for a new trial, Wife-2 appealed, but, in a partially-published opinion, the California Court of Appeals has affirmed the Trial Courts decision. The Appellate Court has ruled that (1) California Probate Code Section 13351 refers to property characterized as community property or decedents separate property at the time of death; (2) the extent of surviving spouses liability depends on characterization of property, not form of title; (3) the fact that joint tenancy property passed to Wife-2 through right of survivorship does not change its characterization as community property at the time of Husbands death (joint tenancy property presumed to be community property); and (4) surviving spouses liability for decedent spouses debts is not extinguished because surviving joint tenant takes property free of encumbrance placed by decedent. The Appellate Court further ruled that Trial Court did not err in concluding that the value of joint tenancy property should be included in calculating the limit of Wife-2s liability for Husbands debts to Wife-1. In the unpublished part of the opinion, the Appellate Court agreed with Trial Court that modified Marital Settlement Agreement was a written agreement that waived application of California Family Code Section 4337.

A California Appellate Court has ruled that a Trial Courts consideration of Wife’s claim of domestic violence in making its spousal support order does not preclude Wife from pursuing a separate tort action against Husband for that same domestic violence. In the case of Boblitt v. Boblitt, Wife moved in with Husband in February of 1983, and from the very first day, Husband began verbally abusing her. Eventually, verbal abuse escalated to physical abuse; Husband broke Wife’s jaw in December of 1984. The abuse did not end when they were married in December of 1989, but continued up to and beyond Wife’s filing for divorce in January of 2004.

In January 2007, Wife filed a statement of issues in the divorce case, which contained detailed descriptions of Husbands physical and emotional abuse and Wife’s claim that her ability to work had been impaired by those injuries. Three days later, Wife filed a separate tort action against Husband, seeking damages for domestic violence, assault and battery, breach of fiduciary obligations, and intentional and negligent infliction of emotional distress.

In April of 2008, Family Law Trial Court issued a statement of decision and judgment on reserved issues in the divorce case, stating that in making its spousal support order, it considered, among other factors, Wife’s claims of domestic violence. In another section of that statement, Family Law Trial Court stated that Wife had been allowed to testify about every domestic violence incident up to the date of trial, found some incidents unbelievable, and found that Husband had behaved in intimidating manner and had done some things he should not have. Family Law Trial Court noted that it was remedying detrimental effect of Husbands actions on Wife’s business by awarding eight months of spousal support, conditioned on no contact between the parties. Family Law Trial Court denied Wife’s request for award of funds for past and future medical bills, counseling, and pain and suffering, noting that such an award would be inappropriate. After moving unsuccessfully for a new trial, Wife appealed.

Around December of 2008, Husband moved for a judgment on the pleadings in Wife’s tort action, claiming that all the causes of action could have been or were tried in the parties divorce case (including domestic violence and Wife’s request for reimbursement of medical bills, and for pain and suffering), which barred their re-litigation. In opposition, Wife contended that the tort action was not precluded because the divorce judgment was not final (appeal was still pending) and domestic violence issues were not litigated in the divorce case. Trial Court granted Husbands motion on grounds of res judicata or collateral estoppel, and subsequently dismissed Wife’s action.

Claiming that Trial Court erred in granting Husbands motion, Wife appealed, and in a partially-published opinion, a California Court of Appeals has now reversed and remanded the case back to Trial Court with directions. The Appellate Court has ruled that (1) Wife has not waived her arguments because they present questions of law and are not based on disputed facts; (2) Wife’s domestic violence claims are not precluded by res judicata or collateral estoppel because they are not based on the same primary right (spousal support request is not based on primary right to be free from personal injury); (3) Family Law Trial Courts denial of Wife’s request for award of funds for medical bills and pain and suffering did not preclude separate tort action for domestic violence claims because Family Law Trial Court had no authority to award damages; and (4) Husband failed to carry his burden of showing that domestic violence claims were litigated in the divorce case. The Appellate Court has further ruled that Trial Court erred by granting Husbands motion, and thus, has reversed the dismissal, and has remanded the case back to Trial Court with directions to vacate the order granting Husbands motion for judgment on the pleadings and to enter a new order denying that motion. In the unpublished part of the opinion, the Appellate Court has ruled that the divorce judgment could not have preclusive effect on Wife’s tort action because it was not final when Husband filed his motion for judgment on the pleadings.