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A California Court of Appeals has ruled that a trial court properly denied spousal support to Mother who inflicted domestic violence on her children and caused them psychological damage through her conviction and incarceration for unlawful sexual conduct with a minor (one of their friends).

In the case of In re Marriage of Schu, Mother and Father were married in 1986, and subsequently had three children who are now adults. Between 1995, and 2001, Father worked in the oil industry in Algeria, spending 28 days there, and then 28 days at home.

Meanwhile, Mother became sexually attracted to one of children’s best friend (Victim), while Victim was still a child. When Victim was 12-years-old, Mother began having oral sex with him. Later the relationship progressed to intercourse, which continued until Victim went to college. On weekends, Mother would provide alcohol for her oldest child and his underage friends, and show them porn movies. The kids would drink until they were sick. The parties oldest son would have sex with underage girls in the house; Mother would have sex with Victim. Although Victim, who wanted to end the relationship, would plead and cry, Mother insisted that he continue to have sex with her. Mother threatened to tell Victims friends and family if he stopped.

The parties children all suspected that something was going on between Mother and Victim, but had no confirmation of the relationship until the parties second child came home to find Mother in the shower and Victim in only a towel. The parties oldest child became concerned after finding Mother and Victim in the bedroom with the door locked. The youngest child wondered why Victim was there when his best friend, the parties oldest child, was not. Fearful that the affair was discussed on the internet, Mother demanded that the second child give her Victims sisters social media password. When the second child refused, Mother had the oldest child hold the second child down while she cut a big chunk out of her very long hair. After that, the second child found it humiliating to go to school with her hair cut.

Subsequently, her home situation caused the second child to develop emotional issues serious enough to make her believe she needed counseling. When she asked Mother to send her to a counselor, Mother warned that a counselor would take her away. Second child understood this to mean that she was to keep quiet about things at home. Therefore, she kept her feelings bottled up to the extent that her friends called her mannequin; she also stated that she never wanted to have children.

Mother was subsequently arrested and pled no contest to seven counts of unlawful sexual conduct with a minor. She was later sentenced to six years in prison. She and Father also began divorce proceedings, and Father paid her $500 per month for spousal support. After their divorce trial, Trial Court found that Mother had sufficient assets to be self-supporting, including $160,000 of her own money, and her name on five to six bank accounts with her father. Mother also received about $914,000 in the community property division, in which she got half of Fathers retirement. Citing California Family Code Section 4320 sections (I) [trial court must consider documented evidence of domestic violence], (m), (n)[other just and equitable factors considered], and (k) [trial court must balance hardships], Trial Court refused to order spousal support for Mother.

Claiming that Trial Court impermissibly considered fault in denying spousal support, Mother appealed. Now, California Court of Appeals has affirmed Trial Courts decision. The Appellate Court has ruled that:

(1) California Family Code Section 2335 precludes Trial Court from admitting evidence of specific acts of misconduct in connection with the divorce case except as otherwise provided by statute;

(2) Family Code Section 4320 is that statute and mandates that Trial Court consider all enumerated factors before making spousal support order, several of which involve acts of misconduct;

(3) Family Code Section 4320(i) requires Trial Court to consider documented evidence of history of domestic violence by party seeking spousal support;

(4) Here, Trial Court correctly determined that Mothers conduct in permitting the oldest child to drink alcohol to the point of nausea and in cutting second child’s hair as punishment constitutes domestic violence (physical and emotional abuse);

(5) Mother provided the oldest child with alcohol and porn and assaulted the second child in order to molest Victim, refused to obtain psychological help for the second child, humiliated and psychologically devastated all three children by being arrested and convicted of sex crimes, and caused inestimable harm to Victim, all of which more than justified Trial Court in denying spousal support to Mother. Finding Mothers assets sufficient for her support (she has beneficial interest in accounts held jointly with her father), the Appellate Court affirms Trial Courts denial of spousal support.

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

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

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

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

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

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

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

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

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

Alimony refers to monthly stipends payable to a spouse or domestic partner for a specific duration after divorce. When a spousal support order is acquired as part of a divorce, your former spouse or domestic partner must start making payments as per court order. A start date for the spousal support, also known as alimony, will be included with this order. Just like child support, an alimony order naming a payor is legally binding. If spousal support is not paid, you may have several options before seeking a contempt order.

Enforcement Actions Spousal support enforcement begins with a judgement entered by the court. If child support is involved in your case, you may contact your local child support agency to provide an enforcement order. They can calculate payments owed and notify the payor of the amount due. The payor is given time to rectify their arrears, or make arrangements. Contempt charges can be filed against a payout for non-payment, partial payment, or late payment. However, this is usually the last resort, as filing the motion of contempt requires you to prove that there is an established alimony judgment entered by the court, that the payor must have knowledge of this court order, and the payor willfully violated said court order. With filing a motion of contempt towards the payor, the burden to prove violation of spousal support falls on your shoulders. Keeping a detailed record of payments received before and after an enforcement action taken on your behalf can assist your case.

One factor that may be considered is non-payment versus partial payment. Does the payor have other bills that need to be taken care of, like rent, car payments, utility bills, as well as spousal support? The question may lean towards the payor’s priorities, rather than ability to pay. Due to the recurrent nature of the alimony, each payment can be subject to separate proceedings, up to three years. Each case is unique. Depending on circumstances and the seriousness of the charges brought against the payor, whether fines or jail time, should not be taken lightly: an experienced spousal support attorney can handle the complex aspects of your case and assist you in arriving at the best solution for your needs. Garnishments and Levies Wage garnishment, also called an earnings assignment order, and levies are commonly used to enforce a spousal support order. Wage garnishment is a deduction from the debtor’s earnings payable to the entitled spouse; an employer is legally obligated to perform an earnings assignment within ten days of receipt. An employer who fails to comply with the wage garnishment is violating the spousal support order, may face legal action, and subject to contempt proceedings. If the employee had no control over the situation, they may not be guilty of contempt liability, due to the fact they did not willfully violate a court order. If your order involves child support, income types like Social Security or Disability that are usually exempt from earnings assessment become eligible for collection due under child support. Your local child support agency may garnish your wages or bank accounts, seize properties, suspend driver’s and professional licenses, or even divert federal and state tax refunds to ensure a spousal support order is met. Motion for Hearing Has the payor still failed to bring alimony payments up to date after notification and enforcement action? Filing for a motion using Form FI-195, Income for Withholding Support, which is available online from the California Courts website, will call for a hearing in the civil court that handled your spousal support case. Through filing a motion for hearing, you bring court attention to alimony payments owed, financial aspects of both parties, and apply for any and all possible solutions for a genial conclusion. The motion must be served to the other party through third party over the age of 18; law enforcement or a private process server. The court will apprise the payor of the date and time of the hearing, in which each party has a chance to explain the circumstances relating to the status of the spousal support. Contempt Proceedings

Debts cannot be enforced by contempt through any California divorce and family law order. Spousal support and family support, which is a combined case of child and spousal support, fall under support obligations and are not considered debts. Whereas payments made by the payor that satisfy a community liability or obligation, such as a house or car payment, are not enforceable through contempt unless the payee can prove that that these are integral to the support order. This can become a very tricky and rough area to navigate due to the complexity of the involved details.

According to the California Code of Civil Procedure 1218(c), for each act of contempt, the convicted spouse or parent shall be fined up to $1000 and or imprisoned for up to five days. Each nonpayment amount can be considered a separate act, meaning that the payor can be found in contempt several times, and charged ten percent annually on arrearage. The court can also assign community service.

Your Spousal Support Representation Matters

Unfortunately, having a spousal support order entered by the court does not remove the need for court intervention and legal counsel. When it comes to pursuing alimony payments, representing yourself pro-se can lead to difficulties in finding effective remedies and the resulting frustration. Having an experienced spousal support collection attorney ensures each available enforcement solution is explored.

Contact our experienced spousal support attorneys today. The professionals at Azemika & Azemika are dedicated in providing you with the immediate relief you deserve. There is no need to leave your situation up to chance when Azemika has your back. With exclusive experience in family law, Azemika & Azemika Law bring you knowledgeable alimony counsel and optimal strategies uniquely crafted for your situation.

In reversal, a California Court of Appeals has ruled that Trial Court was wrong in maintaining 50-50 timeshare after awarding Mother sole legal and sole physical custody of Children due to Fathers domestic violence. According to the Appellate Court, it was an abuse of discretion by Trial Court to award equal time to Father absent a showing that equal timeshare was in Children’s best interests.

In the case of Celia S. v. Hugo H., Mother and Father had a long romantic relationship. During their relationship, they had two children (now ages 12, and 6). The relationship ended after Father committed several acts of domestic violence. In February of 2014, Mother and Father stipulated to a Trial Court order for joint legal and joint physical custody of Children and an alternating weekly custody split.

In January of 2015, Mother invited Father to have dinner with her and the Children at her apartment. While dinner was cooking, Father left the room to take a phone call. Mother sat down where Father had been sitting and began to help their oldest Child with his homework. When Father returned, he demanded to have his chair back and when Mother refused, he allegedly pulled Mother up by her hair. While Mother tried to get away, Father punched her in her ribs or stomach. After they argued some more, Mother told Father to leave; Father did, but loitered outside. Mother called police, who arrested Father for domestic violence. The next day, Mother sought a Domestic Violence Protection Act restraining order and an order for sole legal and sole physical custody of the Children, per California Family Code Section 3044 [presumption that custody award to perpetrator of domestic violence is not in child’s best interests].

Trial Court issued a Temporary Restraining Order and scheduled a hearing. At that hearing, Trial Court heard conflicting testimony about the incident from Mother and Father, and received social workers report detailing Children’s observations and fears regarding Fathers domestic violence. Trial Court issued a one-year restraining order, required Father to complete a 52-week batterers program, concluded that Mother was a victim of domestic violence, and awarded her sole legal and sole physical custody of the Children. However, Trial Court left the parties 50-50 timeshare in place, after modifying the exchange location.

Claiming that Trial Court was wrong in maintaining the 50-50 timeshare on these facts, Mother appealed. Now, a California Court of Appeals has ruled that (1) Trial Court must apply Family Code Section 3044 presumption in any case where it makes a domestic violence finding; (2) Section 3044 presumption may be rebutted by a showing that it would be in child’s best interest to give custody to batterer; (3) Trial Courts maintaining of 50-50 timeshare effectively awarded [Father] joint physical custody even though it labeled the order as visitation; (4) Trail Court may not circumvent Section 3044 requirements by labeling an impermissible custody award as visitation; and (5) Trial Court abused its discretion by failing to apply the Section 3044 presumption properly and awarding joint physical custody to Father without evidence that doing so would be in Children’s best interests. Finding no merit in Fathers other contentions, the Court of Appeals reverses Trial Courts order and remands the case back to Trial Court for further proceedings consistent with its decision.

A big topic in headlines today, Angelina Jolie and Brad Pitt recently filed for divorce. Word has it that Jolie is seeking joint legal custody, but sole physical custody. While divorce is a sensitive topic for all those involved, it is important to understand these terms in relation to your children. What is the difference between legal and physical child custody, and which would be best suited for your children? Child custody can be a difficult and complex issue to navigate in family law, that varies from state to state. An experienced family law attorney can assist you in understanding these terms and their implications, outlining goals for your case, what you may expect from proceedings, and types of custody arrangements the judge may set up.

Physical custody refers to where the child will be living; whether your home, or your ex-spouse’s home. The judge may consider a wide range of factors when coming to a decision. The best interests of the child are top priority. The court may also consider each parent’s capacity for providing care, the stability of the home environment, each parent’s history of domestic violence, drug, or alcohol abuse, among other factors. It’s possible to establish joint physical custody, but this may be difficult for the child involved, even if both parents prefer this. Usually, a child may live at one residence and have frequent visitation with the other parent.

Legal custody is about having the authority to make major decisions regarding how the child is raised. This can refer to decisions relating to your child’s education (where they go to school), healthcare (whether or not they receive medical care), and religious preferences (what religions are practiced, and what kind of activities are observed). In emergent situations, legal custody grants the parent the right to make immediate decisions.

If knowing is half the battle, speaking with an experienced child custody attorney will help you minimize this traumatic time for your family. With the family law professionals at Azemika & Azemika, we will create fast, sympathetic, and effective solutions specifically crafted for your situation. Contact us today for assistance with Legal and Physical Child Custody.

What Is The Difference Between Legal And Physical Custody?

A big topic in headlines today, Angelina Jolie and Brad Pitt recently filed for divorce. Word has it that Jolie is seeking joint legal custody, but sole physical custody. While divorce is a sensitive topic for all those involved, it is important to understand these terms in relation to your children. What is the difference between legal and physical child custody, and which would be best suited for your children? Child custody can be a difficult and complex issue to navigate in family law, that varies from state to state. An experienced family law attorney can assist you in understanding these terms and their implications, outlining goals for your case, what you may expect from proceedings, and types of custody arrangements the judge may set up.

Physical Custody

Physical custody refers to where the child will be living; whether your home, or your ex-spouse’s home. The judge may consider a wide range of factors when coming to a decision. The best interests of the child are top priority. The court may also consider each parent’s capacity for providing care, the stability of the home environment, each parent’s history of domestic violence, drug, or alcohol abuse, among other factors. It’s possible to establish joint physical custody, but this may be difficult for the child involved, even if both parents prefer this. Usually, a child may live at one residence and have frequent visitation with the other parent.

Legal Custody

Legal custody is about having the authority to make major decisions regarding how the child is raised. This can refer to decisions relating to your child’s education (where they go to school), healthcare (whether or not they receive medical care), and religious preferences (what religions are practiced, and what kind of activities are observed). In emergent situations, legal custody grants the parent the right to make immediate decisions.

If knowing is half the battle, speaking with an experienced child custody attorney will help you minimize this traumatic time for your family. With the family law professionals at Azemika & Azemika, we will create fast, sympathetic, and effective solutions specifically crafted for your situation. Contact us today for assistance with Legal and Physical Child Custody.

Divorce is a life changing decision that must be handled with utmost care. Even under the best of circumstances, divorce can take a heavy emotional toll on both parties involved. Thinking about or going through a divorce? Here are the top three mistakes people make during divorce.1. Letting anger get the best of you in divorce, emotions may run high and an argument with your ex seems inevitable. However, behaving out of anger will not end well for your case. Saying something during divorce proceedings that normally would have been said during marriage can take a different connotation, and can be perceived as threatening. This may lead to your ex getting a restraining order and having you removed from the household. When children are involved, this can negatively affect them. Children may feel bad when one parent badmouths another, and began to believe it is their fault. It is important to never use children as pawns in your divorce, or you can further fragment your family. Children need to know that divorce is not their fault, and they have two parents who love them.2. Being passive Allowing guilt or fear to dictate your actions during a divorce may prevent you from seeking what is fair and right. There is life after divorce, and it is important that you make sure you are able to live within your means after the dust settles. Some people mistakenly believe that allowing their ex to kick them out of the house, or voluntarily moving out, alleviates them of responsibility of supporting that household. Between paying rent on a different place and supporting the previous household financially, the costs can build up quickly. Understand that you have to make a living after divorce, and your children have the right to live a decent life. Being passive during a divorce may cause further setbacks, draining you both emotionally and financially.3. Not getting the right legal representation Not all divorces are created equal; there is no one advice that fits all divorces. Taking advice from family or friends who have “been there, done that” is not recommended. While their advice may be useful, they are not licensed professionals. Finding the right legal attorney means looking for someone who can maintain balance between you and your ex, while also doing what’s best for your family. It’s important to choose someone who is well versed in family law, and will pay attention to the details of your case. Family law is changing all the time, and it’s best to stick with those who know how best to meet your needs. Take no substitutes for your family law legal lawyers! Acting on bad legal advice may have heavier penalties than if you had taken no action at all. At Azemika & Azemika Law, we exclusively practice family law. With the dedicated professionals at Azemika & Azemika, we give you fast, sympathetic, and effective solutions that you deserve. By creating a support plan, you will receive legal advice specifically crafted for your situation. We will fight for you and your family. If you need help in navigating your divorce proceedings, please contact us.

In the case of Cima-Sorci v. Sorci, Father met Mother in Italy, where he was serving in the U.S. Air Force. They married in September of 2007, and their son was born in December of 2007. After Fathers deployment ended, Father returned to California and enrolled at the California Highway Patrol Academy. Mother and Child stayed in Italy until July of 2009, when they joined Father in California. The reunion was not successful, and in November of 2009, Mother and Child moved back to Italy, where Mother filed for divorce.

In February of 2010, an Italian Trial Court authorized Mother and Father to live separately, awarded custody of Child to Mother, and ordered Father to pay 1,000 Euros per month for child support and 500 Euros per month for spousal support, later reduced to 400. In May of 2013, Italian Trial Court granted Mother and Father a decree of separation, awarded Mother full custody of Child (due to conflict between Mother and Father), granted Father visitation in summer and during Christmas holiday, and ordered Father to continue paying child and spousal support in the amounts previously ordered.

Meanwhile, per Mothers request, the Sacramento County Department of Child Support Services (DCSS) had been enforcing the temporary support order administratively since June of 2010. When Father objected to the administrative enforcement of the order, DCSS filed a Notice of Registration of Out-of-State Support Order, along with the required documentation and notice to Father regarding contesting registration.

Father then filed a timely Request for Hearing Regarding Registration of Support Order, asking Sacramento County Trial Court to vacate the registration on the grounds that Italy was not a state under Uniform Interstate Family Support Act. (This act limits the jurisdiction that can properly establish and modify child support orders and addresses the enforcement of child support obligations within the United States.) Father argued that Italian support law was vastly different from California support law in that it contained no formulas for calculating support, lacked presumption regarding spousal support in short marriages, and specified no age for terminating child support. In opposition, DCSS claimed that Father had the burden of proving that one of seven statutory defenses to registration of a foreign support order in California Family Code Section 4956(a) barred registration of this Italian support order and Father failed to meet that burden. After a hearing, Trial Court agreed that Father had not met his burden, declined to vacate registration order, and declined to issue statement of decision. Father appealed, but California Court of Appeals has now affirmed Trial Courts decision.

The Appellate Court has ruled that (1) Trial Court correctly determined that Father, and not DCSS, had the burden of showing that Italy is not a state under UIFSA; (2) Father failed to meet that burden; (3) the fact that Italian law differs in calculating support orders does not mean that its laws are not substantially similar to Californias, where, as here, Italian law recognizes validity of California support orders and is willing to enforce them; (4) focus must be on foreign jurisdictions laws and procedures for issuing and enforcing support orders, not on laws and procedures relating to support calculation; and (5) Fathers contentions that he was denied opportunity to present evidence and that Trial Court should have issued statement of decision are without merit.

Before his death in 1990, Fathers father held multiple parcels of real property in various trusts, one of which was the Deluca Properties Trust (DPT). One of the properties in DPT was the Florida Street property (an apartment complex). After Fathers father died, Father, his sister (Sister), and their brother (Brother) engaged in years of litigation over their fathers trusts. Meanwhile, Father married Mother on September 7, 1996.

On October 25, 1996, Father, Sister, and Brother reached a settlement agreement to resolve the trust litigation, which included the usual release of claims. Father received commercial properties in Santee, Encinitas, and San Diego; Sister received the Florida Street property and a $75,000 promissory note from Father secured by a first deed of trust on the San Diego property, along with a $32,000 forgiveness of debt from Brother. Brother received title to another San Diego property and a $250,000 promissory note from Father, secured by a third-priority deed of trust on the Santee and Encinitas properties. The agreement also provided that Father relinquished his status as a trust beneficiary and agreed that the trust assets belonged solely to Sister and Brother, and that the agreement could be amended only by a written agreement signed by all the parties.

In September of 1997, as Father would later testify, he and Sister signed a second agreement (Amendment to Settlement Agreement and Mutual Release), which provided that Sister would transfer the Florida Street property to Father by grant deed in exchange for a promissory note of $164,700, secured by the property. Father was to have the option of assuming the first deed of trust of $235,300, or continuing to make the monthly payments on that deed of trust. Father would also pay $20,000 to Sister. The agreement expressly stated that it was intended to be a redistribution of trust assets and not to change any of the provisions of the original agreement, except as stated. Father and Sister signed the agreement; Brother did not.

In January of 1998, at Fathers request, Mother signed a quitclaim deed transferring any interest she had in the Florida Street property to Father as his separate property. In 2002, she signed a spousal acknowledgment that she had no interest in the property in conjunction with a refinance on it.

Mother and Father separated on November 21, 2011. In subsequent proceedings, Father was awarded sole custody of their two children. In the divorce papers, Father stated that he owned and operated an insurance agency, and also owned and managed several income-producing rental properties. Mother, who had a B.A. and a paralegal certificate, had worked as a legal secretary all during their marriage. At trial, Mother claimed that the Florida Street property was community property, but Father maintained it was his separate property. Father claimed that the property was part of his inheritance, while Mother contended that he acquired it during their marriage by a sale between him and Sister. Accountants for both parties testified about the methods each used to calculate Fathers income and determine whether Father had used community property funds to acquire the Florida Street property.

When the trial concluded, Trial Court found, among other things, that the Florida Street property was Fathers separate property, that Father had overcome the presumption of undue influence regarding Mothers signing the quitclaim deed and spousal acknowledgment, and that tracing method used by Fathers accountant was accurate. Trial Court also included the payments on principal Father made to service loans on his income producing properties as income available for spousal support and ordered Father to pay $7,500 per month to Mother for spousal support.

Mother appealed Trial Courts determination that the Florida Street property was Fathers separate property and Father appealed the spousal support order. Now, a California Court of Appeals has affirmed Trial Courts decision in part and has reversed the decision in part.

With respect to the characterization of Florida Street property, the Appellate Court has ruled that Trial Court was wrong in determining that the Florida Street property was Fathers separate property because (a) Father acquired it from Sister by purchasing it, not by inheritance, (b) the amended settlement agreement was not valid because Brother did not sign it,(c) Fathers inception of title argument is unpersuasive, (d) Fathers accountants tracing evidence was insufficient to show that he acquired the property solely with separate funds, and (e) Mothers signing quitclaim deed and spousal acknowledgment did not constitute valid transmutation because Mother lacked full knowledge of the facts and the documents did not contain statutorily required language regarding the change in ownership and characterization of the property. Appellate Court also ruled that Father is entitled to California Family Code Section 2640 reimbursement on showing of his separate property contributions.

With respect to the issue of spousal support, the Appellate Court has ruled that Trial Court was also wrong by including the payments Father made on the property loans as income available for spousal support. Finding guidance in a Wyoming Supreme Court case (Fleenor v. Fleenor (Wyo.1999) 992 P.2d. 1065), the Appellate Court states the general rule that the principal portion of a business mortgage payment may be deductible from income available for spousal support if Trial Court determines that the payment reasonably and legitimately reduces net income for support under the relevant circumstances (ordinary and necessary business expense versus substantial hardship to payor).

The Appellate Court reverses Trial Courts orders regarding the Florida Street property and spousal support payments and sends the case back to Trial Court for further proceedings, but affirms all other provisions of the divorce judgment.

A California Court of Appeals has ruled that a sperm donor whose paternity cannot be established under California Family Code Section 7613 (conception through donation by a donor other than spouse) may still be presumed to be the father under California Family Code Section 7611(d) (openly holding out the child as his or her natural child) and be ordered to pay child support.

In the case of County of Orange v. Cole, Mother and Father met in 1991, but they did not begin a sexual relationship until 2005. Mother knew that Father was married and had two children, but she believed that he was separated from his wife. After Mother and Father decided to raise a child together, Father had a surgical procedure done in order to extract his sperm and Mother, at her own expense, underwent in vitro fertilization using his sperm. Father was present when their Child was born in February of 2008, and he chose the babys name. After that, Father spent one or two nights per week at Mothers home. Since Father was a pilot, Mother believed that he spent the rest of the time out of town.

Father held himself out to Mothers family and friends as Childs father, did not correct those who said he was Childs father, and did not correct Child when Child called him Daddy. Father did not pay child support for Child, but he bought Mother a car, paid her $500 per month for rent on garage space, and helped with Mothers mortgage payments during 2009. However, Father did not bring Child to his residence with his wife, never introduced Child to his wife and other kids, and failed to tell his friends and family about Child. Also, Father did not add Child to his insurance or estate planning documents, and said that he did not intend to have a relationship with Child. His wife and kids knew nothing of Childs existence.

In 2010, Father told Mother that he was cutting off all contact with her and Child, and would not be financially responsible for Child. In August of 2014, the County of Orange filed a petition seeking a paternity judgment against Father, as Childs father, and an order for child support. In response, Father denied that he was Childs biological dad. In a statement of decision issued after a trial, Trial Court found that Father had clearly discussed fathering a child with Mother, had undergone a surgical procedure to provide his sperm, and had intended to have a child with Mother. Trial Court also found that for a period of two and one-half years, Father had two homes, one with his wife and kids, and the other with Mother and Child. During that time, Trial Court said, Father had a relationship with Child, spent two to four days per week at Mothers house, paid some of Mother and Childs expenses, and held himself out as Childs father to Mothers friends and family. Trial Court concluded that Father was Childs presumed father under Family Code Section 7611(d) [took Child into his home and held Child out as his child] and ordered Father to pay child support for Child.

Claiming that Family Code Section 7613 [donor who provides sperm to physician for use by a woman not his wife is not treated as natural father of resulting child] precluded Trial Court from finding that he is Childs presumed father, F appealed. However, California Court of Appeals has now affirmed Trial Courts decision. The Appellate Court has ruled that (1) pursuant to the Appellate Courts decision in the case of Jason P. (2014) 226 Cal.App.4th 167, Family Code Section 7613 does not preclude finding that a man who meets qualifications under Family Code Section 7611(d) is child’s presumed parent; (2) the evidence here supports Trial Courts finding that Father is Childs presumed father (his failure to reveal Childs existence to his other family and his stated intention not to have a relationship with Child are trumped by his actions before and for two and one-half years after Childs birth); and (3) Family Code Section 7611(d) does not require Father to hold Child out as his child in every situation and does not protect fathers who lead double lives.

A California Appellate Court has ruled that a Trial Court was wrong when it declined to enforce form I-864 (affidavit of support of immigrant by sponsor) in a divorce action because Wife made insufficient efforts to find work. Wife had no duty to mitigate damages and she had standing to enforce that form in state divorce court.

In the case of In re Marriage of Kumar, Husband, a U.S. citizen, and Wife, a citizen of Fiji, were married in Fiji on September 22, 2012, in an arranged marriage. Husband then filed a form I-130 petition for an immigrant visa for Wife. He also signed a form I-864 affidavit of support, which obligated him to support Wife for 10 years at an income that is at least 125% of the Federal Poverty Guidelines for his household size. The affidavit also stated that Wife would have the right to sue Husband for support if Husband failed to pay.

Wife arrived in the U.S. from Fiji in July of 2013, and began living in Daly City, California with Husband and his family. Wife would later allege that Husband began abusing her almost immediately. Husband refused to speak to Wife except to tell her that he didn’t want her and she should go back to Fiji. Wife claimed that Husband and his family tricked her into going to Fiji with them, and once there, he abandoned her and someone tore the legal permanent resident stamp out of her passport. After receiving temporary travel documents from the U.S. Embassy in Fiji, Wife returned to the U.S. on December 29, 2013.

On January 14, 2014, Husband filed for an annulment or alternatively for a divorce. In her response, Wife asked Trial Court to deny Husbands annulment petition, but to grant a divorce judgment. In April of 2014, Wife followed up with a financial statement showing that she had applied for TANF, SSI, or GA/GR, but had not received any benefits and had no salary.

At the May 7, 2014 hearing on spousal support, Wife’s attorney told Trial Court that Husband and Wife had agreed that Husband would pay W $675 per month for temporary support, but Wife would not agree to a seek work order or a Gavron warning [that she has a duty to become self-supporting within a reasonable period of time which usually is one-half the length of the marriage]. Counsel stated that Wife was on general assistance and living in a shelter, but could not seek work because Husband had stolen her current residency card. Husbands attorney countered that it was Wife’s choice to come here and stay here, thus, she had a duty to become self-supporting. Wife’s attorney then asserted that Husband had signed a form I-864 affidavit that obligated him to support Wife for 10 years or 40 quarters. Husbands attorney countered that the affidavit was irrelevant in this court.

When the hearing concluded, Trial Court ordered Husband to pay $675 per month for temporary support, per their agreement, declined to make a seek work order, gave a Gavron warning, and ordered Wife to make reasonable and good faith efforts to obtain the paperwork needed to enable her to work in the U.S.

On September 3, 2014, Husband sought an order terminating spousal support and granting a status-only divorce judgment. Husband claimed that Wife had not made the necessary efforts to become self-supporting and asked Trial Court to impute the income to Wife that she could expect to earn from a full-time minimum wage job. In her responsive declaration, Wife stated that Husband had stolen her green card and she was waiting for replacement papers. Wife also stated that she received cash aid and food stamps until Husband began paying her spousal support. Wife attached the I-864 form to her response, and asked Trial Court to continue support based on its requirements. Wife followed up with an amended memorandum of points and authorities, asking Trial Court to enforce the I-864 support requirements and to order Husband to pay $1,196 per month in accordance with the poverty guideline for 2014. Wife contended that the affidavit was an enforceable contract, was in addition to any spousal support payable under state law, and that the divorce did not wipe out its obligation. Wife also asserted that she was not required to file a separate contract action to obtain enforcement of the affidavit.

At the March 18, 2015 hearing, Trial Court heard argument on Husbands request to terminate spousal support and Wife’s request to enforce the affidavit. Wife’s attorney told Trial Court that Wife was working part-time at Blimpies for $9 per hour, and taking courses to obtain her GED. Trial Court terminated the temporary support order effective immediately. When Wife’s attorney asked for a ruling on enforcement of the affidavit, Trial Court responded that it declined to order spousal support because Wife failed to work up to her full potential. Trial Court stated that it was declining to enforce the affidavit because Wife failed to use her best efforts to find work, and told Wife to file a federal action. That same day, Trial Court entered the parties status-only divorce judgment and an order terminating spousal support.

Claiming that Trial Court was wrong by failing to enforce the affidavit on the basis of her work efforts, Wife appealed. Now, a California Court of Appeals has reversed Trial Courts decision. The Appellate Court has ruled that (1) I-864 affidavit creates a contractual right to minimum support from sponsor to immigrant; (2) sponsored immigrant may enforce I-864 contract in either the federal or state court (including in the divorce court); and (3) per Liu (7 Cir 2012) 686 F.3d 418, Wife has no duty to mitigate damages (no seek work requirement). The Appellate Court has ruled that Trial Court was wrong by denying Wife’s contract claim under the affidavit on the basis that she failed to use her best efforts to seek work. The Appellate Court reverses and sends the case back to Trial Court in order for Trial Court to consider that claim in accordance with this opinion.