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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Child Support Department Can Enforce Italian Support Order

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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.

Property Purchased During Marriage Is Community Property Despite Wife Signing a Deed and Husband’s Payment of Loans on Investment Properties Cannot Be Considered as Income Available for Spousal Support

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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.

Father Living Double Life is Presumed Father of his Girlfriend’s Child

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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.

Marrying Someone from Outside of U.S. May Contractually Obligate You to Support Them

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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.

High Earner Has to Pay Same Child Support Despite His Income Going Down

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

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

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

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

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

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

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

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

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

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

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

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

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

Husband Did Not Waive His Community Property Interest When He Signed a Deed Transferring Title of Their Property to Wife

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In the case of In re Marriage of Begian and Sarajian, Mother and Father were married in August of 1993, and later they had two children. On April 29, 1996, Mothers mother (Grandmother) signed a quitclaim deed that transferred an undivided 48% interest in a residential property to Mother. Grandmother retained a 52% interest in the property. That same day, Father signed a separate quitclaim deed transferring all of his right, title, and interest (community property or otherwise) in the property to Mother as her separate property. On June 21, 2001, Grandmother and Mother executed an Individual Grant Deed granting their respective interests in the property to Grandmother, Mother, and Father, all as joint tenants, giving Father a community property interest in the property.

Five years later, on May 1, 2006, Grandmother, Mother and Father signed a Trust Transfer Deed, which stated that For No Consideration each of them granted to Mother the following real property and listed the legal description of the property. The deed also stated that the conveyance was a bona fide gift which was not subject to documentary transfer tax.

Eight years later, on December 19, 2014, Mother created a separate property trust, with herself as trustee and the parties children as beneficiaries. She also signed another Trust Transfer Deed granting the property, as her separate property, to herself as trustee of the newly created trust.

Mother and Father separated in September of 2015. On June 29, 2016, Father filed for divorce, and asked Trial Court to confirm that the property was community property. In response, Mother contended that the property was her separate property.

Trial Court bifurcated (separated) the issue of the property’s characterization as community property or Wife’s separate property and set that issue for trial. At trial, Father argued that the Trust Transfer Deed he had signed did not contain an unambiguous declaration of his intention, as the adversely affected spouse, to transmute (change the character of) his community property interest in the property to Mothers separate property. Father claimed that the deed had been executed in conjunction with estate planning and that there had been absolutely no mention of changing or adversely affecting his property rights in the property. In opposition, Mother argued that the word grant in the deed was an unambiguous declaration that Father intended to change the characterization of his interest in the property from Joint Tenancy to Mothers separate property. Mother contended that the deed could not be interpreted as transferring the property into her trust because the deed did not mention her trust, which did not exist when the deed was signed.

In a statement of decision issued on August 29, 2016, Trial Court found that the word grant in the Trust Transfer Deed was an express declaration of Fathers intent to transfer his interest to Mother and that the mention of a bona fide gift put Father on notice that he was making a gift to Mother that changed the characterization or ownership of the property. Trial Court also determined that the title of the deed did not mean that the property was being transferred into a trust, since no trust was identified on the face of the deed. On September 14, 2016, Trial Court filed an order deeming the property to be Mothers separate property. On October 3, 2016, Trial Court certified the issue of the characterization of the property for immediate appeal.

Now, acting on Fathers appeal, the California Court of Appeal has reversed Trial Court. The Appellate Court has ruled that (1) pursuant to California Family Code Section 852(a), a valid transmutation must be made in writing by an express declaration made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected; (2) pursuant to the California Supreme Courts decision in the case of In re Estate of MacDonald (1990) 51 Cal.3d 262, the declaration must expressly state that the characterization or ownership of the property is being changed, without resort to extrinsic (outside) evidence; (3) pursuant to the Appellate Courts decision in the case of In re Marriage of Barneson (1999) 69 Cal.App.4th 583, a conveyance that is reasonably susceptible of more than one meaning does not meet the express declaration requirement; (4) here, the use of the word grant is ambiguous because it expresses Fathers intent to transfer an interest in the property, but does not specify what interest is being transferred; (5) the title Trust Transfer on the deed suggests that Father might have been transferring his community property interest to Mother to place into a trust without changing its characterization or ownership; and (6) without extrinsic evidence, which is prohibited, the interest that Father intended to transfer cannot be definitively determined. Therefore, the Appellate Court concludes that the Trust Transfer Deed was not a valid transmutation of Fathers interest in the property and thus, it reverses Trial Courts decision.

Mom Can’t Move Child to Israel Until 30 Days After Entry of Court’s Judgment

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On December 6, 2018, a California Court of Appeals has ruled that a Trial Court was wrong by determining that the time period for California Code of Civil Procedure Section 917.7 (30-day statutory stay of order permitting a parent to remove a child from California) began to run on date it issued tentative order. According to the Court of Appeals, the time period begins to run on the date that Trial Court enters its judgment allowing the child to be removed from California.

In the case of Lief v. Superior Court (Nissan), Mother met Father in Israel in 2010. She then moved to San Diego, where she married Father the following year in 2011. Their son was born in 2014. In 2017, Father filed for divorce. Trial Court subsequently bifurcated the custody and visitation issues from the remaining issues in the parties divorce case and it held a trial on Mothers request to move to Israel with Child.

On August 10, 2018, Trial Court tentatively granted Mothers request. However, Trial Court reopened the hearing in response to Fathers reconsideration motion, in order to consider new evidence and argument. On November 7, 2018, Trial Court entered a judgment granting Mothers move-away request. Mother then notified Father that she planned to leave for Israel with Child on November 22, 2018.

Father promptly filed an ex parte application for a Trial Court order preventing Mother from leaving until after December 7, 2018, when the Code of Civil Procedure Section 917.7 30-day stay of judgment granting move-away request would have run. On November 21, 2018, Trial Court determined that the 30-day stay time period began to run when it issued its tentative ruling on August 10, 2018, denied Fathers application, and ordered him to return Child to Mother that evening.

Claiming that the 30-day time period did not begin to run until Trial Court entered its judgment on November 7, 2018, Father petitioned California Court of Appeals for a writ of mandate and immediate stay of the order letting Mother move on November 22, 2018. The Appellate Court does grant Fathers petition and issues the requested writ.

The Appellate Court has ruled that (1) Code of Civil Procedure Section 917.7 provides that the order permitting a minor child to be removed from California is stayed for a period of 30 days from the entry of judgment or order; (2) Trial Courts oral statement of decision was not a judgment or order (it contained several conditions to be met before Mother could move away with Child and Trial Court stated that it had not entered a judgment and its decision was still tentative); (3) pursuant to California Rules of Court Rule 3.1590(b), a tentative decision is not a judgment and is not binding on a Trial Court; and (4) Mother has conceded that Father is entitled to relief and agreed not to leave for Israel until December 7, 2018. Therefore, Appellate Court issues a writ commanding Trial Court to vacate its November 21, 2018, order and to enter a new order granting Fathers petition to prevent Mother from removing Child from California until 30 days after the entry of its judgment.

What are the Steps to Terminating Parental Rights?

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Termination of parental rights refers to the legal severing of the parent-child relationship by the state. There are many reasons to pursue termination of parental rights. You may be a parent seeking to end parental rights for the other parent to protect your child. You may be a stepparent interested in adopting your stepchild. Whatever your reason, terminating parental rights is the first step towards adoption. The court will determine what is in the best interests of the child. California public policy assumes it is in the best interests of the child to be in contact with and receive support from both parents, until and unless the court determines that the parent(s) is unfit to care for the child. The process for filing for terminating parental rights includes understanding the reasons to petition for parental rights, knowing who can bring up a parental rights termination case, and when a termination of parental rights should be filed.

In California, there are some legal reasons the court would consider terminating parental rights. Some issues that may lead to parental rights termination are:

One parent cannot voluntarily terminate their parental rights to avoid paying child support or to resolve custody disputes, even if the other parent agrees. A parent may give up their parental rights is if there is a stepparent willing to take over the legal responsibilities and obligations for the child through a formal adoption. A parent cannot petition for terminating parental rights simply because they are upset at the other parent or they are attempting to block the other parent from taking part in their minor child’s life. There must be a legal basis in order to petition for terminating parental rights.

One may file for child abandonment and pursue a parental rights termination case to legally sever the parent-child legal relationship concerning custody and otherwise, if the child is under 18 and fits within the descriptions of California Family Code Section 7822. Examples of those who can file a proceeding for parental rights termination include:

A Juvenile Dependency Court proceeding can terminate parental rights if one or both parents have been deemed unfit to care for the child. In this scenario, when parental rights are terminated, the government becomes the legal guardian for the child. The child may be legally adopted without prior parental consent.

California Family Code section 7822 provides that one may bring a child abandonment case under any of the following situations:

Termination of parental rights can be a difficult situation to navigate, and not every petition for terminating parental rights is granted. If you are a parent who is either filing for termination of parental rights, or facing a case where your parental rights may be terminated, you need to hire experienced family law legal counsel to protect your rights.

Every child deserves the support of a loving family. We at Azemika & Azemika Law understand that terminating parental rights takes a heavy emotional toll on families, but is also the first step in uniting families through adoption. Our experienced Kern County Family Law attorneys understand that you want to protect a child you love. We will bring you fast and effective solutions customized for your unique needs when it comes to pursuing termination of parental rights in Kern County. With the knowledgeable professionals at Azemika & Azemika Law, our premiere Bakersfield divorce lawyers focus on your family, so you can focus on the future.