Paul

The United States Tax Court has ruled that Father whose ex-wife disappeared with their two children in 1999, cannot claim dependency exemptions that he was entitled to under the parties divorce judgment (he made all his child support payments during their absence) because his ex-wife failed to execute I.R.S. Form 8332 (Release of Dependency Exemption) as required by the Judgment. In the case of Himes v. Commissioner, Father, a Nebraska resident, divorced his first wife, Mother, on September 11, 1995. Their divorce judgment required him to pay child support for their two children and allowed him to claim the dependency exemption for one of the children on his federal and state income tax returns for 1995, and all succeeding years. On January 22, 1999, Nebraska Trial Court modified the parties divorce judgment to provide that Father would be entitled to claim the dependency exemptions for both children if his child support payments were current when each tax year ended. That modification also required Mother to execute and deliver an I.R.S. Form 8332 (Release of Dependency Exemption) to the county clerk, who would then verify status of Fathers child support payments and send the release to Father.

Later in 1999, Mother and the children left Nebraska for somewhere unknown. Father completely lost contact with the children, but continued to make his child support payments regularly. He also claimed dependency exemptions for the children on his federal tax returns, even though Mother never executed any releases. When Father and his current spouse filed their joint federal income tax return for the tax year 2006, they claimed dependency exemptions for both children (plus the child tax credits) and attached a copy of the modified divorce judgment to their return. Mother also claimed the dependency exemptions and the child tax credits for both children on her 2006 return.

When I.R.S. assessed deficiency of $3,618 on Father and Wifes tax return attributable to exemptions and child tax credits, Father and Wife petitioned the U.S. Tax Court for relief. Now, the Tax Court has rules in favor of I.R.S. The U.S. Tax Court finds that (1) a divorced non-custodial parent cannot claim the dependency exemptions unless the custodial parent releases the dependency exemptions on I.R.S. Form 8332 or a substantially equivalent document, which non-custodial parent attaches to his or her return; (2) the modified divorce judgment attached by Father to his joint return does not qualify as a substantially equivalent document because it does not contain Mothers signature; (3) Father and Wife cannot claim dependency exemptions, despite his faithful payment of child support and Mothers failure to comply with the divorce judgment, because lack of I.R.S. Form 8332 or its substantial equivalent is fatal to their claim; and (4) Father and Wife cannot claim child tax credits because they are not entitled to claim dependency exemptions for the children.

California Judicial Council has accepted the Elkins task force report containing 117 recommendations for ensuring that family law litigants are dealt with fairly, efficiently, and with due process. This report recommends the establishment of a committee to implement those 117 recommendations. On April 23, 2010, Judicial Council accepted report of Elkins Family Law Task Force based on a comprehensive two-year study of California Family Law trial courts, rules, policies and procedures. The Task Force engaged in extensive outreach to California Family Law judicial officers, court staff, private and public attorneys, and Family Law litigants, seeking their views on the current state of the Family Law courts and their suggestions for improvements. It received input from e-mail, letters, surveys, focus groups, and testimony at meetings and public hearings.

After releasing its draft recommendations on October 1, 2009, the Task Force received further comments and suggestions. Now, it has presented the Judicial Council with its finalized recommendations, which Judicial Council has accepted. Highlights of those recommendations, which Task Force divided into five categories are as follows:

1. Efficient and Effective Procedures to Help Ensure Justice, Fairness, Due Process, and Safety.

Trial Courts should adopt case-flow management procedures that establish family-centered case resolution processes tailored to the needs of each family. These procedures would let parties know the next steps needed to successfully move their cases to a timely resolution and will permit parties to explore reconciliation, collaborative proceedings, or other dispute-resolving methods.

Parties should be able to provide live testimony on substantive issues to judicial officers at hearings on motions and Order to Show Causes, absent a finding of good cause to prohibit it.

Family Law rules should be revised to be more comprehensive and provide greater statewide uniformity, should include effective local practices that can be implemented statewide; local rules should neither address nor be inconsistent with procedures covered by statute or California Rules of Court.

Judicial Council should review all Family Law forms and simplify them as much as possible and should review local forms to determine which might be adapted for statewide use (local forms may not conflict with Judicial Council forms). Summary divorce and other procedures for uncontested cases should be simplified. Forms should be translated into multiple languages.

Adopt efficient, uniform statewide procedure to process default and uncontested judgments to make it easier for litigants to obtain default judgments, while reducing workload of court staff processing them.

Trials and long-cause hearings should be heard until completed without interruption by other trials.

Domestic violence procedures in Family Law court should permit parties to obtain custody, visitation, and child-support orders that stay in effect after protective orders expire. Parties who are not married should be permitted to establish uncontested parentage orders without filing separate parentage action. Family Law courts should have procedures in place for mediation and other services that allow court staff to meet with parties separately in cases involving domestic violence allegations.

Judicial Council should assess adequacy of existing civil remedies for perjury. If necessary, it should seek legislation to expand type of sanctions awardable to include, for example, restitution or fines in addition to attorneys fees; issue preclusion and evidentiary sanctions, to the extent not already permitted, could be explicitly made available as sanctions. Civil sanctions for perjury could also be extended to case types beyond currently-limited scenarios of false declarations of disclosure, child support, and false child-abuse allegations. Judicial Council might also consider whether expansion of civil remedies for perjury should apply to all civil cases, not just Family Law.

2. More Effective Child Custody Procedures To Improve Court Experience for Families and Children.

Parents should be given meaningful opportunity to respond to information provided to Trial Court by mediators, evaluators and investigators. Child-custody mediation should be adequately funded to give mediators enough time to mediate disputes. Roles of child-custody evaluators and investigators should be better defined. Pilot projects should be established that would promote confidential mediation initially and would test best ways to assist courts in getting needed information about families, if parties fail to reach an agreement.

Trial courts should determine on case-by-case basis whether and in what manner child testifies, taking into account Trial Courts need to hear from the child in order to make an informed decision, its obligation to protect children from any harm that may result from their participation, and childs wishes. Trial Court that appoints counsel for child should clearly define counsels role and make sure that he or she acts within its scope. Minors counsel should not assume evaluators role, make recommendations, file report, or testify. Trial Court must ensure that counsel meets minimum requirements, should monitor fees billed by counsel, and should cap fees as appropriate.

Child Welfare Services should conduct initial investigation of all allegations of child abuse and neglect, whether or not either parent has filed a Family Law action. Pilot projects should be established to study best ways to handle cases involving child-abuse allegations.

Task Force also recommends improving meaningful access to justice for all litigants by increasing availability of legal representation (including limited representation), self-help services, legal service programs and pro bono panels. It also recommends that Trial Courts consider making early needs-based attorney fee orders rather than waiting until trial. Additional recommendations include establishing litigant education programs, expanding availability of mediation and settlement programs, improving availability of interpreters and services for hearing impaired litigants, and designing future courthouses to be more responsive to the needs of Family Law litigants and persons with disabilities.

In addition, Task Force recommends enhancing status of and respect for Family Law litigants and Family Law process through judicial leadership. That leadership should include efforts to ensure that Family Law courts receive sufficient resources and well-qualified judges to give families time and attention they deserve to resolve their cases in a timely fashion. Family Law judicial officers should be given better education and training and Trial Court should set up more public information and outreach designed to educate the public on the role of Family Law courts, its processes and its services. The Task Force recognizes that current budget constraints may delay full implementation of its recommendations, but emphasizes that they should be prepared for implementation when situation eases.

You may access full text of report at: www.courtinfo.ca.gov/jc/documents/reports/20100423itemj.pdf

A California Appellate Court has ruled that Fathers motion to set aside a 1998 default child support judgment should have been granted by Trial Court because Trial Court never acquired personal jurisdiction over Father since he was never properly served with the Summons and Complaint. In the case of County of San Diego vs. Gorham, Family Support Division of San Diego County District Attorneys Office (now Department of Child Support Services) filed, on October 15, 1997, a Complaint to establish Fathers paternity of child who was born in 1991, and for child support, retroactive child support, and health insurance coverage. On May 19, 1998, D.C.S.S. filed proof of service signed by a registered process server under penalty of perjury, stating that the process server had personally served Father with the Summons and Complaint on May 8, 1998, at 7:13 p.m. at a San Diego residential address. D.C.S.S. followed that up on June 18, 1998, with a request to enter Fathers default and they sent notice of that request and hearing date to Father at that same address. On July 15, 1998, Trial Court found that Father was Childs father and ordered him to pay $341 per month for child support, plus child support arrearages of $12,000, payable at the rate of $100 per month beginning on August 1, 1998. Trial Court also ordered Father to provide health insurance coverage for Child, and issued a wage assignment order.

On March 13, 2002, Father met with D.C.S.S. caseworker regarding existing support judgment for his son from another relationship. Caseworker informed Father that there was another default judgment against him, then continued to explain details of the new judgment regarding his son, including “zero” arrearages for periods of time when he was incarcerated, including from February 1, 1998, through October 31, 1998. Caseworker did not discuss Childs case because Child ceased to receive aid on August 31, 2000, but suggested that Father contact local family law facilitator for help him with that case.

When D.C.S.S. received intercepted funds from Fathers unemployment benefits in June 2002, and from May through July 2003, it allocated those funds between Fathers two cases.

Father was in Kern Valley State Prison in December 2007, when he received notification from D.C.S.S. that he owed $58,000 in child support arrearages in Childs case. After his release in January 2008, Father retained counsel and on April 24, 2008, Father specially appeared through counsel to file a motion to set aside the 1998 default judgment on grounds of fraudulent service and to dismiss underlying Complaint. In supporting declaration, Father stated that he lived at the address on proof of service only from May to June 1997, and was incarcerated on the date that he was allegedly personally served by the process server. Father claimed that he had never been served with the Summons and Complaint, and attached copies of Trial Courts minutes showing his guilty plea and sentencing. In opposition, D.C.S.S. asserted that address of alleged service was furnished by D.M.V. and that Father had failed to show that he had not posted bail and been released when alleged service occurred.

At the hearing on May 29, 2008, Father argued that he had been denied due process because D.C.S.S.s failure to properly serve him meant that Trial Court had never acquired personal jurisdiction over him. D.C.S.S. countered that even if ineffective service made judgment void, he could not challenge judgment because he failed to file his set-aside motion within six months after he learned of it, in accordance with California Family Code Section 3691.

Trial Court then ordered the parties to file points and authorities regarding the application of Family Code Section 3691, and continued the hearing. At the continued hearing, Trial Court stated that it did not believe that process server had either attempted to or properly served Father, but it was troubled by Fathers waiting until 2008, after learning of default judgment in 2002. Trial Court then ordered parties to submit additional briefing on whether it ever acquired jurisdiction over Father and whether Section 3691 barred Father from seeking remedy.

On October 31, 2008, Trial Court issued a tentative decision to dismiss the entire case on the basis that fraudulent service precluded it from having personal jurisdiction over Father, but after further argument, took the matter under submission. On March 11, 2009, Trial Court issued a final statement of decision, finding that (1) lack of personal service made default judgment void for lack of personal jurisdiction; (2) false proof of service constituted extrinsic fraud; (3) Fathers set-aside motion was untimely under California Code of Civil Procedure Section 473.5(a) six month time limit or within reasonable time (Father did not act promptly, significant interests of Mother and County would be impaired by set-aside, and false proof of service was not intentionally or willfully false); (4) Fathers motion was untimely under California Family Code Section 3691, which preempts equitable set-aside and adequately addresses due-process considerations; and (5) request for dismissal under California Code of Civil Procedure Section 583.210 [failure to serve] was untimely. Accordingly, Trial Court denied Fathers motions.

Father appealed, and California Appellate Court has now reversed the Trial Courts decision and has remanded the case back to Trial Court with specific directions. The Appellate Court has ruled that (1) lack of proper service on Father deprived Trial Court of personal jurisdiction and renders any judgment automatically void; (2) Trial Court retains inherent power to vacate default judgment that is void for lack of due process; (3) California Family Code Section 3691 does not preempt where Trial Court failed to acquire personal jurisdiction over litigant because of fraudulent service (whether intentional or unintentional); (4) D.C.S.S. failed to properly inquire into underlying facts before pursuing its complaint against Father; (5) there is no evidence that Father acquiesced in default judgment or treated it as enforceable; (6) Trial Courts finding regarding California Code of Civil Procedure Section 583.210 was erroneous because dismissal was mandatory due to improper service; and (7) default judgment was void as violating the fundamental due process rights of Father since he was never served with the Summons and Complaint. The Appellate Court, therefore, has ruled that Trial Court abused its discretion by failing to dismiss this case, and thus, reverses the decision and remands the case back to Trial Court with directions to dismiss the case.

A California Appellate Court has ruled that a litigant who seeks putative spouse status must show an objective good faith belief in validity of his or her marriage and has affirmed the Trial Court decision to deny Husbands request to be designated as a putative spouse because he failed to show such belief. In the case of In re Marriage of Guo and Sun, Husband and Girlfriend met in North Korea in 1997 or 1998. After they became romantically involved, Husband and Girlfriend moved to Los Angeles. Sometime later, Husband told Girlfriend that he had a Wife in Italy.

In January 2001, Husband met with his Attorney to start divorce proceedings against Wife. On February 14, 2001, Husband and Girlfriend went to Las Vegas and got married. Girlfriend believed that Husband was free to marry her because he told her that his divorce had gone through. However, for reasons known only to them, Husband and Girlfriend stated on their marriage license that their marriage was Husbands first.

On February 15, 2001, Attorney filed Husbands petition to divorce Wife. Trial Court entered status-only divorce judgment ending that marriage on August 21, 2001.

On August 24, 2007, Girlfriend filed a divorce petition. She followed up on January 7, 2008, with filing of petition for annulment, claiming that her marriage to Husband was bigamous. On August 15, 2008, Trial Court found that Husband and Girlfriends marriage was illegal and void under California Family Code Section 2201(a) [subsequent marriage to another person is illegal and void unless prior marriage ended in divorce or annulment or prior spouse has been missing for five years or is generally reputed or believed to be dead] because Husband was still married to Wife when he purportedly married Girlfriend. Accordingly, Trial Court entered a judgment of nullity as to parties marital status, but did not adjudicate property issues.

After entry of that judgment, Husband filed a request to be declared a putative spouse. Following a two-day trial, Trial Court denied his request, finding that Husband lacked objectively reasonable good faith belief that his prior marriage to Wife was dissolved before he purportedly married Girlfriend.

Claiming that Trial Court erred by failing to consider Girlfriends good faith belief in validity of their marriage before it denied his request, Husband appealed, but California Court of Appeals has affirmed the Trial Courts decision. Appellate Court has found that (1) putative spouse doctrine is designed to protect an innocent spouses rights in an invalid marriage; (2) the person seeking to be declared a putative spouse must have an objective (not subjective) good faith belief in validity of his or her marriage; (3) sufficient evidence supported Trial Courts denial of putative-spouse status to Husband because Trial Court (a) could reasonably infer that Husband knew his divorce from Wife was not final from his falsely stating that his marriage to Girlfriend was his first marriage, (b) could also infer that Husband knew that his attorney had not yet filed his divorce petition, and (c) could reasonably find that Husband should have known that his attorney could not grant divorce, but would notify him when divorce judgment was issued; (4) disagreeing with the case of In re Marriage of Tejeda (2009) 179 Cal.App.4th 973 [both parties are putative spouses if either party has good faith belief in validity of marriage], California Family Code Section 2251(a)(1) should be interpreted to protect a party who has a good faith belief (party without such a belief cannot ride on the coattails of innocent spouse to achieve putative spouse status); and (5) permitting both innocent and non-innocent parties to have putative spouse status would undermine the purpose of the putative-spouse doctrine and impermissibly allow a non-innocent party to reap benefits of that status.

A California Appellate Court has ruled that Trial Court did not make a mistake in modifying a prior judges sealing orders and unsealing some documents in a high-profile divorce case since the prior judges sealing orders are subject to continuing review and modification by successor trial judge in the same case. In the case of In re Marriage of Nicholas, Mother filed for divorce from Father, a cofounder of a “successful and well-known high-technology company.” Their divorce and a separate federal criminal indictment for securities fraud and narcotics crimes, drew “intense media scrutiny and interest. . . .”

After their case was assigned to trial judge, Mother and Father stipulated to an order, issued in January of 2003, requiring any document containing confidential information to be filed and sealed in the Courts file. Confidential information was defined as including any information relating to family investments and holdings, along with information pertaining to their family and private lives, “personal characteristics, lifestyle, proclivities, customs, conduct, fitness, habits, sexual or other behavior, health and any other personal information. . . .”

The parties divorce was later assigned to another judge who recognized that the prominence of this family in Orange County made their filings newsworthy and issued a second sealing order in December of 2006, requiring sealing of any pleading or other document relating to custody of Mother and Fathers three minor children. That order also required Trial Court to seal all previously filed documents and to remove them from Trial Courts computer system.

The second Judge then followed up in January of 2007, with a third sealing order restricting access to court files to parties attorneys of record and requiring others to seek a Trial Court order for any access. In February 2007, the Judge, on his own motion, issued a fourth sealing order, which incorporated by reference all of the findings contained in his second order and required the sealing of all of the documents in the Trial Courts file, including those relating to family finances and holdings in Fathers company. This order was itself sealed, along with the Trial Courts docket sheet and the entire Trial Courts file.

In August of 2007, Los Angeles Times filed a motion to intervene and to unseal the divorce records, claiming that although some filings might be subject to a seal order, Mother and Father could not successfully argue that the entire Trial Court file should be sealed from public view. In December of 2007, the Judge issued a fifth sealing order in which he vacated the fourth sealing order, but left the documents sealed. The Judge then appointed a special master to determine which Trial Court records, past or future, should be sealed or redacted, and gave the special master general guidelines regarding making that determination. The Judge also advised the special master to unseal the parties Income and Expense Declarations, hearing notices, and pleadings, declarations, and exhibits that did not reference the parties children.

In February 2008, Mother and Father filed separate motions, seeking further redaction and further sealing of Trial Court records. The Judge referred them to the special master. In April of 2008, Mother and Father stipulated to have their divorce case referred to a retired Judge. The Trial Courts Supervising Judge approved that assignment for all matters except the sealing issues. In June of 2008, the Supervising Judge reassigned the divorce case to another Judge (the fifth one in the case) to handle those issues.

On assuming his assignment, this latest Judge was faced with (1) numerous bankers boxes full of unlabeled brown envelopes, (2) 23 pages of register of actions containing “non-descriptive filings,” and (3) great difficulty accessing any information. Believing that the sealing of the entire file impermissibly limited public access to the divorce records, this Judge ordered the special master to prepare a privilege log of all sealed and redacted pleadings and documents, which the Judge intended to review for possible unsealing of certain documents.

On August 2008, this last Judge issued a sixth sealing order, suspending the special masters appointment and ordering his prior reports unsealed. Stating his intention to modify the prior sealing orders to give public access to future Trial Court filings, the Judge set a briefing schedule and calendared a hearing for early September. Father promptly filed a peremptory challenge to this Judge, but Trial Court denied it and the California Appellate Court declined to order a writ of mandate. Meanwhile, one of the original Judges filed a report under seal relating to the custody and visitation of the parties children.

On June 6, 2009, after a hearing, the last Judge issued a seventh sealing order, which vacated the fifth sealing order, unsealed all previously sealed filings pertaining to the hearing, opened redacted copy of the custody judgment, and ordered the Court Clerk to prepare a list of documents that might have been erroneously filed under seal. The Judge also ordered the Clerk to prepare a log of the entire file, categorizing document contents, and directed that, effective August 1, 2009, all future filings would not be under seal unless the filing party adhered to the statutory procedures for filings under seal. The Judge reminded the parties that the filings should have redacted Social Security and financial account numbers. Father promptly filed a notice of appeal from the seventh sealing order, claiming that the Judge lacked the jurisdiction to modify the prior sealing order, which became binding after appeals period expired. On September 3, 2009, the fifth Judge on the case issued an eighth sealing order containing a list of erroneously filed documents and directing the parties to review and submit any objections they may have to their unsealing.

Now, acting on Fathers appeal in a partially-published opinion, California Appellate Court has affirmed the Trial Courts rulings. The Appellate Court has ruled that (1) there is a strong presumption in favor of public access to civil court records; (2) sealing orders should have limited duration and be reviewed periodically to determine the continued need for them; (3) California Rules of Court Rule 2.55(h) permits Trial Court to unseal records that have been sealed by a prior order; and (4) Trial Courts inherent power to control its proceedings and case files gives Trial Court the authority to amend or modify sealing orders. Therefore, the Appellate Court affirms seventh sealing order. In the unpublished part of the opinion, the Appellate Court has ruled that issuing the seventh sealing order was not an abuse of discretion.

A California Appellate Court has ruled that Trial Court was wrong in refusing to review the billing records of Mothers attorney, to conduct a needs-based analysis, or to consider the records and reports showing Fathers uncooperative and dilatory conduct before denying Mothers requests for awards of attorneys fees, and fees as sanctions. In fact, the Appellate Court ordered the case assigned to another judge on remand because the trial judges actions raised appearance of bias. In the case of In re Marriage of Tharp, Mother and Father were married on October 11, 1992, and later had three children. When Father filed for divorce on August 27, 2007, his divorce petition stated that he, Wife, and their counsel had signed a prenuptial agreement which provided that all of the property owned by Father, along with all of his income earned before, during, or after the marriage, was Fathers separate property. Father attached no schedule of debts and assets, but promised to file one in a timely fashion. Father also asked for joint legal and physical custody of the children. In response, Mother sought joint legal custody, but sole physical custody of the children. Mothers response stated that the full extent of the parties community property assets and debts would be discovered later.

On November 6, 2007, Mother filed a Motion seeking spousal and child support, plus $50,000 as advanced attorneys fees and $20,000 for a forensic accountant; Mother also sought parental custody assessment. In supporting declaration, Mother asserted that Fathers annual income in 2005, as an employee of and a shareholder in his familys multimillion-dollar corporation, was $132,534, over and above family expenses paid by the corporation (such as family cars, property taxes and insurance on the family home, housekeepers and ranch hands employed at family home, telephones, utilities, health insurance, country club dues, and credit card bills). Mother explained that the forensic accounting was necessary to unravel Fathers interests in various subsidiary companies and to uncover any community property funds transferred to remove them from community property estate. Mother denied signing the prenuptial agreement and asserted that Father had ignored her requests to produce that document. In his response to Mothers Motion, Father agreed to pay guideline support, plus $1,000 of Mothers attorneys fees; Father claimed that forensic accounting was unnecessary.

On December 18, 2007, Trial Court issued an order finding that Fathers monthly income was $10,000, and that “vast majority” of familys expenses were paid by corporation and “not reflected as taxable income” to Mother and Father. Trial Court awarded Mother $5,000 per month for family support and physical custody of the child, with some timeshare for Father. Trial Court also ordered Father to have the corporation continue to pay certain family expenses, but reserved the right to characterize payments later and to recalculate the support. Trial Court told Mother to make the best efforts to become employed full time by June 1, 2008. In addition, Trial Court recognizing the disparity of incomes, ordered Father to pay $2,500 to Mothers attorney and the same amount for accounting evaluation.

On January 25, 2008, Mother filed a motion to have the parties divorce case designated as a “complex” case under California Family Code Section 2032(d) [Trial Court may order case management of complex cases and allocate fee payments] because of complicated financial issues, and renewed her request for $50,000 in fees and $20,000 for forensic accountant. Mother stated that she was without independent financial means, was unemployed, and needed help of attorney and experts to enable her to litigate case adequately. Trial Court found that the divorce case was complex under California Family Code Section 2451 [case management designation and contents of plan] and ordered the development and implementation of case management plan. Trial Court then ordered Father to pay $20,000 to Mothers attorney and scheduled a case management conference. Trial Court also designated psychologist to prepare a custody evaluation and submit a report, which the psychologist did on March 21, 2008.

At the March 28, 2008, case management conference, Father appeared with new counsel, and obtained a continuance to May 8, 2008. In April of 2008, Mother filed a motion to compel answers to form interrogatories and document requests, and to join corporation and Fathers parents trust as parties to the divorce case.

On May 2, 2008, Trial Court personally selected therapist to conduct an individual and family therapy recommended in the psychologists report, stating that the therapist had no conflicts of interest. At the May 8, 2008, hearing, Trial Court threatened Father with a writ of execution if he did not pay $20,000 for attorneys fees previously ordered, granted Mothers motion to compel further responses, and ordered Father to pay sanctions of $1,500 to Mothers attorney. Trial Court ordered the corporation (but not parents trust) joined, and gave Father 45 days to produce state and federal tax returns, stock books and corporate records, and other documents requested by forensic accountant.

In subsequent proceedings, Trial Court bifurcated the issue of existence and validity of premarital agreement and scheduled a trial for July 28, 2008. Trial Court ordered Father and his attorney to either produce signed copy of that agreement or notify Trial Court and remove the matter from the calendar. When Trial Court dealt with the remaining motions to compel on May 30, 2008, it looked unfavorably on Fathers attorneys request for continuance and expressed concern with lack of progress in the case. Trial Court appointed a discovery referee to hold a hearing on pending motions to compel, and rejected Fathers request for stay of discovery until the forensic accountant finished his work.

In July, Mother filed two Order to Show Causes, seeking contempt orders against Father for lack of compliance with discovery and other orders, asking for permission to meet with forensic accountant to discuss the findings and obtain copies of documents, and seeking orders for fees and sanctions. When Mother and her attorney appeared for the bifurcated trial on July 28, 2008, they discovered that instead of appearing, Father and his attorney had faxed a letter stating that there was no prenuptial.

At the September 17, 2008, hearing on Mothers two Order to Show Causes, Trial Court refused to award fees or order sanctions, but ordered Father to send to Mother copies of all documents previously sent to the forensic accountant. Mother later agreed to dismiss the contempt.

On November 26, 2008, Mother filed another motion for attorney and forensic accounting fees and sanctions under California Family Code Section 271 and 2100 because of Fathers failure to comply with prior discovery and fee orders. In supporting declaration, Mother estimated Fathers monthly income at $47,000, listed additional corporations in which Father had an interest, detailed Fathers failures to provide discovery or comply with existing orders, and stated that her only asset was a 401(k) plan and her temporary spousal support payments from Father. She said that she had paid attorneys fees of $12,770 in addition to the $22,500 that Trial Court had ordered Father to pay. Mothers attorney submitted a lengthy and detailed declaration regarding the attorneys fees earned, expenses incurred, and the estimated future fees and costs; counsel requested current and future fees of $310,000. Mothers attorneys declaration provided a 53-page chronology of procedural and substantive history of the case, and included copies of rulings, discovery requests, meet and confer letters, and briefing letters; the declaration also asserted that Fathers pattern of conduct and failure to provide discovery or to comply with Trial Court orders unnecessarily increased the litigation costs.

On February 17, 2008, the court-appointed discovery referee filed a report stating that Mothers contempt motion had merit because of Fathers extremely tardy responses to discovery requests and her motion to compel was equally justified by Fathers failure to respond to the requests. The referee recommended awards of fees and sanctions, and noted that Mothers attorney had “significantly aided” him in dealing with Fathers delays. In the referees view, $31,286 attorneys fees incurred in connection with the discovery assistance “was time well spent and earned.”

Meanwhile, when therapist filed an initial report and recommendation, Mother became concerned about missing information and, on Trial Courts order, therapist submitted a supplemental report. After that, Mother began to believe that therapist was hostile to her. In September 2008, Trial Court ordered therapist to conduct a co-parenting counseling with Mother and Father alone; instead, therapist began meeting with Father and the children, but not with Mother. When Mother questioned this, therapist told her that she was attempting to reunify Father and children because Mother had withheld the children (Trial Court had made no such findings). In November of 2008, Mother learned that therapist was acquainted with Fathers grandfather and that therapists husband, son, and brother-in-law were long-time regular customers of Fathers family corporation. In January 23, 2009, Trial Court presented parties attorneys with report from therapist expressing doubts about continuing to work with the family and accusing Mother of “making accusations against her.” Around that time, Mother submitted a declaration seeking full disclosure of therapists familys ties to Fathers family and business and moved to recuse therapist. Trial Court refused Mothers counsels request for informal resolution of possible conflict and required formal motion filed within five days. After therapist provided additional clarifying information, Mother withdrew her recusal motion, but Trial Court kept the hearing date on calendar and therapist filed three more reports.

On February 16, 2009, Trial Court denied from the bench Mothers most recent request for needs-based fee order. Finding no basis for it, Trial Court told Mother to encumber her share of community property if she needed funds to pay for her attorney. When Mother moved for reconsideration, presenting four items of new evidence, Trial Court denied her motion. In written order issued March 11, 2009, Trial Court called Mothers fee requests “grossly excessive,” took Mother to task for failing to find employment, told Mother to sign a Family Law Attorneys Real Property Lein or pay her attorney from her spousal support, and refused to examine detailed billing statements from Mothers attorney. Trial Court said it was not its responsibility to “ferret out and determine” whether fees requested were fair. After Mother filed final fee request on March 26, 2009, Trial Court refused to make order covering existing fees, but ordered Father to pay $20,000 in future fees at conclusion of the trial. Mother appealed. She also filed an Order to Show Cause seeking stay of proceedings pending the appeal. Trial Court determined that the stay would not apply to custody or support issues and continued hearing to May 21, 2009.

On May 11, 2009, at the hearing on custody and visitation issues, Trial Court, apparently in response to therapists reports, granted Father sole legal and physical custody of children and awarded visitation of three weekends a month to Mother. In a 14-page written order, Trial Court found that Mother had “sabotaged” therapists therapy “by conjuring up conflicts of interest,” and warned that Mothers visitation would be limited to supervised visits if she continued to engage in unspecified unacceptable behaviors. Trial Court later denied the stay. When Father filed motion to remove Mother from the family home so he could live there with the children, Mother petitioned the California Court of Appeals for a writ of supersedeas, seeking stay of all pending matters.

On July 31, 2009, the Appellate Court granted the petition and issued the requested writ. Now, acting on Mothers appeal, the Appellate Court reverses Trial Courts rulings and remands the case back to Trial Court for further proceedings in light of its decision. Regarding the fees portion of Trial Courts rulings, the Appellate Court finds that Trial Court abused its discretion by (1) failing to make statutorily-required review and consideration of Mothers attorneys time records, (2) refusing to make needs-based analysis of disparity in parties incomes, (3) ignoring its obligation to ensure that Mother was awarded sufficient fees to retain counsel and experts necessary to litigation (level playing field), (4) refusing to award fees as sanctions under Family Code Section 271 for Fathers conduct that frustrated settlement and Section 2107 for Fathers breaches of fiduciary duty of full disclosure. The Appellate Court reverses and remands the case with directions to Trial Court to conduct needs-based analysis and review billings before awarding needs-based fees, and order fees as sanctions under Family Code Sections 271 and 2107. Regarding the reassignment of the case, the Appellate Court concludes that on remand, this case must be assigned to another Trial Judge because (1) this case is out of control, (2) current judges words and conduct in at least eight instances create doubt that he could be impartial on remand, and (3) this matter requires a Judge who will use tools available in statutes and rules to bring it under control and move it to completion.

A California Court of Appeal has ruled that a Trial Court made a mistake by including children in the D.V.P.A. restraining order that was granted to Mother and by making custody and visitation orders because Mexico Trial Court had exclusive continuing jurisdiction over the children under Uniform Child Custody Jurisdiction Enforcement Act. In the case of In re Marriage of Fernandez-Abin and Sanchez, Mother and Father were married in Mexico in 1995. Their two children were born in San Diego in 1998, and 2003, respectively.

In October 2007, Mother filed for legal separation in Tijuana Trial Court. Later that month, she and Father made an agreement regarding his visitation rights. After Mother filed for divorce in December of 2007, Tijuana Trial Court granted her legal and physical custody of the children and ordered Father to pay child support. Father was also ordered not to leave Mexico unless he had local attorney.

Late in April of 2008, Mothers case was transferred to another judge. In June of 2008, Father and 10 men armed with assault weapons took children from Mothers parents house in Tijuana and took off for parts unknown. Mother sought help from Tijuana District Attorney and filed a request for the childrens return. Tijuana Trial Court then ordered District Attorney to investigate and terminated visitation agreement. Tijuana Trial Court later ordered Father not to have visitation or remove children from Tijuana.

Mother initiated Hague Convention petition and moved legally to San Diego. When Tijuana Trial Court issued an order conditioning Fathers visitation on returning the children to Mother, Father refused to do so. After Tijuana Trial Court ordered Tijuana authorities to “use any force necessary” to effect the childrens return, law enforcement twice tried and failed to recover the children.

In September of 2008, following a hearing on Mothers Hague petition, San Diego District Attorney child abduction unit was able to remove the children from Fathers Chula Vista home and reunite them with Mother. According to Mother, Father then threatened to have her killed if she returned to Tijuana. She and the children ended up living in domestic violence shelter in San Diego.

On November 7, 2008, Mother filed a request for a restraining order to protect her and the children from Fathers threats, abuse, and domestic violence. San Diego Trial Court granted Temporary Restraining Order that included personal conduct and stay-away orders covering Mother and children, granted temporary legal and physical custody to Mother, and scheduled a hearing for December 1, 2008. Meanwhile, Tijuana Trial Court held hearings on visitation request filed by Father, made orders regarding return of Mothers personal property, and declined to order visitation unless Father, Mother, and the children had a psychological evaluation.

On November 25, 2008, Tijuana Trial Court issued a visitation order, permitting Father weekly supervised visits for 10 hours, plus daily telephone contact of 60 minutes. On November 16, 2008, Father filed a motion to quash and for dismissal of the restraining order action on grounds of forum non conveniens and lack of Uniform Child Custody Jurisdiction Enforcement Act jurisdiction.

At the December 1, 2008 hearing, San Diego Trial Court found that it had temporary emergency U.C.C.J.E.A. jurisdiction over the children under California Family Code Section 3424(a), cautioned Father to comply with the existing custody and visitation orders, and to seek resolution of visitation issues in Tijuana Trial Court. At the continued hearing on December 10, 2008, Trial Court found that Tijuana Trial Court orders were appropriate and refused to assume U.C.C.J.E.A. jurisdiction over the children. San Diego Trial Court issued restraining orders to protect Mother, and granted the motion to quash and to dismiss as to the children. Mothers case was then transferred to Judge Lisa Schall.

On February 13, 2009, Tijuana Trial Court sent a letter to San Diego Trial Court in the restraining order, stating her belief that the children would not be safe visiting Father in Tijuana because of extensive publicity regarding Mother and Fathers divorce, but emphasizing Fathers right to see the children, explaining visitation orders, and asking to be informed about San Diego Trial Courts actions.

At the evidentiary hearing on the restraining order in April of 2009, Father argued that San Diego Trial Court lacked U.C.C.J.E.A. jurisdiction to include the children in scope of restraining order. San Diego Trial Court, however, found that the best-interests doctrine permitted including the children in any order issued. When the hearing concluded, San Diego Trial Court found that both Mother and the children needed protection, and San Diego Trial Court had jurisdiction to make orders to protect the children, who were living here.

After the April 16th hearing on custody and visitation, San Diego Trial Court found that it had jurisdiction as to the restraining order action (which could include the children), and could balance Tijuana Trial Courts visitation and custody orders against current facts and evidence; San Diego Trial Court then appointed reunification counselor. When Father subsequently moved to vacate the April orders, San Diego Trial Court found that California was the childrens habitual residence since June of 2008, and continued the orders limiting Fathers visitation to webcam.

In September 2008, San Diego Trial Court granted Fathers request to register Tijuana Trial Courts letter, but found that Tijuana Trial Court did not have all of the current facts, San Diego Trial Court would make ultimate decision on visitation, and San Diego Trial Court had previously granted legal and physical custody of the children to Mother.

Claiming that San Diego Trial Court lacked necessary U.C.C.J.E.A. jurisdiction to make custody and visitation orders or include the children in the restraining order, Father appealed, and the California Appellate Court reverses the Trial Courts decisions. The Appellate Court has found that (1) U.C.C.J.E.A. applies to restraining order proceedings; (2) absent finding of temporary emergency jurisdiction, Trial Court lacked U.C.C.J.E.A. jurisdiction because Tijuana Trial Court had exclusive continuing U.C.C.J.E.A. jurisdiction; and (3) San Diego Trial Court failed to consider exercising emergency jurisdiction in making its restraining, custody, and visitation orders. Thus, the Appellate Court reversed April 9, 2009, restraining order as it pertains to the custody and visitation and remanded the case back to San Diego Trial Court with directions to determine whether it had emergency jurisdiction when it included the children in that order, to make appropriate findings under U.C.C.J.E.A., and to adhere to U.C.C.J.E.A. statutory requirements.

A California Appellate Court has ruled that Trial Court correctly determined that Mother and Father had putative marriage because Mother did not know that Father was already married when she married him and she had good-faith belief in validity of their marriage for over 30 years. Therefore, property that Mother acquired during the parties marriage was quasi-marital property and is subject to division between the parties as community property.

In the case ofIn re Marriage of Tejeda, Mother and Father were married in Las Vegas in 1973. They later had five children. However, unbeknownst to Mother, on their wedding day, Husband was still married to another woman. Father filed for divorce from his first Wife in 1975, and Trial Court entered their divorce judgment in 1976. Mother and Father held a marriage ceremony in Mexico in 1988, but that marriage was not solemnized by civil formalities. Meanwhile, Mother believed that their Las Vegas marriage was valid.

In 1994,Mother began acquiring real property in her name alone or with other relatives. None of those properties were in joint names of Mother and Father.

In March of 2006, Father filed for divorce from Mother. Mothers response also sought divorce, but was later amended to seek an annulment. In October of 2007, after proceedings were transferred to Santa Cruz County, Mother filed another amended response, seeking annulment of her marriage to Father and confirmation of all properties as her separate property.

In a brief prepared for hearing on validity of his marriage, Father argued that he and Mother were putative spouses because he had good-faith belief that they were validly married. Mothers brief asserted that Father could not prove good-faith belief, that she was not seeking putative-spouse status, and that marriage was bigamous and void.

At a hearing in January of 2008, Mother testified that prior to their Las Vegas marriage, Father told her that he was divorced. She also testified that she believed in the validity of their marriage until she learned the truth in 2006. Trial Court made an oral finding that Fathers prior marriage made his marriage to Mother void or voidable, but that Mothers belief in its validity had been reaffirmed “by her actions over some period of time,” which included filing joint tax returns, claiming married status for immigration purposes, using Fathers name, and receiving medical insurance and social security benefits under Fathers name. Trial Court concluded that Mother and Father were putative spouses under California Family Code Section 2251 [where either party has good-faith belief in validity of void or voidable marriage, parties are putative spouses; property that would have been community property is quasi-marital], and that property acquired during their putative marriage was subject to division as community property, subject to tracing or other characterization issues.

In June 2008, Trial Court entered a judgment of nullity, declaring that Mother and Father were putative spouses, and that their property was quasi-marital. Mother appealed, but California Court of Appeals has affirmed the Trial Courts rulings. The Appellate Court has ruled that (1) after a Trial Court finds that the parties marriage is invalid and that either party had good-faith belief in its validity, it must declare the party who has that belief to be putative spouse; (2) where one party is a putative spouse, an otherwise invalid marriage is a putative marriage; (3) California Family Code Section 2251 applies when only one party is a putative spouse (not both); and (4) upon a finding of putative spouse, Trial Court must divide all quasi-marital property as if it were community property. Therefore, the Appellate Court has ruled that Trial Court did not err by finding that Mother was a putative spouse or that property she acquired during her putative marriage to Father was quasi-marital property subject to division between Mother and Father as community property.

A Tax Court has ruled that non-custodial Father is not entitled to claim dependency exemption because custodial parent Mother failed to complete I.R.S. Form 8332 releasing the exemption and the divorce judgment, which Father attached to return, does not contain substantially same information. In the case of Thomas v. Commissioner, when Arizona resident (Father) was divorced from Mother in June of 1994, their divorce judgment awarded custody of their 3 year-old daughter to Mother; Father was awarded 30 days of visitation in summer, plus reasonable visitation in Daughters State of residence. Father was also ordered to pay child support of $400 per month through Arizona Trial Court. The parties divorce judgment further provided that Mother would claim the dependency exemption and child tax credit for tax year 1995, and succeeding odd-numbered years, while Father would claim the exemption and credit in even-numbered years, if he was current in his child-support payments. Mother was required to execute necessary forms to permit Father to claim exemption and credit, but only if Fathers child support payments were not in arrears.

In 2006, Father was not delinquent in his child support payments for Daughter, who lived with Mother in Ohio. On his 2006 federal income tax return, prepared by his CPA, Father claimed dependency exemption and child care credit, but the CPA subsequently notified him that his return was rejected from electronic filing because someone else claimed dependency exemption. The CPA then filed Fathers paper return, to which Father attached copy of the divorce judgment, but not the I.R.S. Form 8332 exemption release. I.R.S. sent a deficiency notice to Father, claiming that he was not entitled to claim either the dependency exemption or child tax credit.

Father then petitioned the U.S. Tax Court for relief, but the Tax Court has now ruled in favor of I.R.S. The Tax Court has ruled that (1) per I.R.C. 152(e), Father, as non-custodial parent, was not entitled to claim the dependency exemption unless (a) Daughter received more than half of her support from Mother and Father, (b) Mother and Father were divorced, separated, or living separate and apart for at last six months of 2006, (c) Daughter was in custody of either Mother or Father more than half of 2006, and (d) Mother, as custodial parent, released dependency exemption and Father attached the Form 8332 release or document conforming to its substance to his return ; (2) Father could meet conditions (a), (b), and (c), but not (d); (3) the divorce judgment did not qualify as conforming document because it lacked Social Security numbers for Mother and Father, Mothers signature was not dated, and release of exemption was conditioned on Fathers being current with child support payments; (4) Father could not claim dependency exemption; and (5) Fathers being unable to claim dependency exemption meant that he was also ineligible to claim child tax credit. The Tax Court therefore has concluded that although it is sympathetic to Fathers predicament, it is bound by statutes and regulations as written.

A California Appellate Court has ruled that a Trial Court was wrong in ruling that a Porsche vehicle purchased during the parties marriage with Wifes separate property funds (but treated by Husband as gift to him) was Husbands separate property.In re Marriage of Buie and Neighbors, Husband and Wife were married in 1999. Sometime thereafter, Husband paid $60,000 for a 2001 Porsche 996 using funds from Wifes separate property checking account. Husband considered the Porsche to be a gift from Wife, apparently because the purchase took place shortly before his birthday. Husband and Wife subsequently divorced.

After trial on reserved issues, Trial Court found that the Porsche had been transmuted to Husbands separate property under California Family Code Section 852(c) [written transmutation unnecessary for gifts of “tangible articles of a personal nature that are not substantial in value” relative to marital circumstances].

Claiming that the Porsche was not Husbands separate property and seeking California Family Code Section 2460(b) reimbursement, Wife appealed, and California Appellate Court has now reversed the Trial Courts decision and has remanded the cases back to Trial Court. The Appellate Court has ruled that (1) the Porsche should be characterized as community property unless California Family Code Section 852(c) applies; (2) the language of Section 852(c) is ambiguous as to whether automobiles qualify as “tangible articles of a personal nature;” (3) per legislative history of Section 852(c) and report of California Law Revision Commission, gift of automobile does not give rise to presumption of separate property because automobiles do not qualify as articles of personal nature under that statute; and (4) Wife did not execute either a written transmutation of the Porsche from community property to Husbands separate property or written waiver of reimbursement right under California Family Code Section 2640(b). The Appellate Court has thus ruled that Trial Court erred by characterizing the Porsche as Husbands separate property because automobiles do not qualify as tangible articles of personal nature under Section 852(c), and the Porsche could not be transmuted to Husbands separate property absent written transmutation. The Appellate Court has concluded that Wife is entitled to reimbursement of her separate property contribution to acquisition of the Porsche under California Family Code Section 2640(b).