Legal News: Family Law
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Bardales v. Duarte (February 8, 2010)
Voluntary dismissal of mother’s federal court petition for relief
under Hague Convention did not render moot her appeal from
trial court order granting father custody. Neither Hague
Convention nor International Child Abduction Remedies Act
precludes state trial court from exercising control over its own
proceedings, including dismissing a petition for failure to
prosecute.
Voluntary dismissal of mother’s federal court petition for relief
under Hague Convention did not render moot her appeal from
trial court order granting father custody. Neither Hague
Convention nor International Child Abduction Remedies Act
precludes state trial court from exercising control over its own
proceedings, including dismissing a petition for failure to
prosecute.
In re: Marriage of Sonne (Sonne I) (February 22, 2010)Since
community contributed only to annuity component of retirement
allowance, community is not entitled to share of pension
component funded by employer contributions.
community contributed only to annuity component of retirement
allowance, community is not entitled to share of pension
component funded by employer contributions.
Mendoza v. Ramos (March 3, 2010)
Where plaintiff's petition to modify custody led to a change in
child support payments, trial court properly denied plaintiff's
claim that income defendant received as a recipient of
CalWORKS—which provides benefits to families with minor
children where parents are unable to provide support—should
be attributed to defendant for the purposes of determining child
support because plaintiff failed to show defendant had the
ability to earn the income he sought to impute, and because
imputation of income to a parent on CalWORKs would be
contrary to public policy.
Where plaintiff's petition to modify custody led to a change in
child support payments, trial court properly denied plaintiff's
claim that income defendant received as a recipient of
CalWORKS—which provides benefits to families with minor
children where parents are unable to provide support—should
be attributed to defendant for the purposes of determining child
support because plaintiff failed to show defendant had the
ability to earn the income he sought to impute, and because
imputation of income to a parent on CalWORKs would be
contrary to public policy.
In re: Marriage of MacManus (February 25, 2010)
Trial court may consider parties’ history of domestic violence in
making award of temporary spousal support.
Trial court may consider parties’ history of domestic violence in
making award of temporary spousal support.
Escobar v. Flores (April 7, 2010)
Trial court did not err in declining to order father to return
8-year-old son to his habitual residence in Chile under the
Hague Convention on the Civil Aspects of International Child
Abduction based on finding that the child objected to being
returned to Chile and had attained an age and degree of
maturity at which it was appropriate to take account of his views.
Trial court did not err in declining to order father to return
8-year-old son to his habitual residence in Chile under the
Hague Convention on the Civil Aspects of International Child
Abduction based on finding that the child objected to being
returned to Chile and had attained an age and degree of
maturity at which it was appropriate to take account of his views.
In re: Marriage of Zimmerman (April 8, 2010)
Action to set aside child support order based on fraud must be
brought within six months after complaining party discovered
fraud.
Action to set aside child support order based on fraud must be
brought within six months after complaining party discovered
fraud.
CMRE Financial Services, Inc. v. Parton (April 29, 2010)
Trial court erred in entering judgment against wife for medical
fees husband incurred following their separation. Judgment of
dissolution relieved wife of any liability to medical care provider
that may have arisen under Family Code Sec. 914.
Trial court erred in entering judgment against wife for medical
fees husband incurred following their separation. Judgment of
dissolution relieved wife of any liability to medical care provider
that may have arisen under Family Code Sec. 914.
Abbott v. Abbott (May 17, 2010)
Chilean father’s ne exeat right, granting authority to require
consent before mother could take son to another country, gave
him a right of custody under the Hague Convention on the Civil
Aspects of International Child Abduction allowing father to
require mother to return son to Chile, son’s country of habitual
residence, unless a specific convention exception applied.
Chilean father’s ne exeat right, granting authority to require
consent before mother could take son to another country, gave
him a right of custody under the Hague Convention on the Civil
Aspects of International Child Abduction allowing father to
require mother to return son to Chile, son’s country of habitual
residence, unless a specific convention exception applied.
In re: Marriage of Schopfer (Schopfer I) (May 18, 2010)Where
stepfather was one of child’s legal custodians pursuant to a
court order, his support of child was not voluntary and so
Family Code Sec. 3951--which only applies to voluntary
support--was inapplicable to compensation paid by father. A
child turning 18 does not render the formula for guideline child
support inapplicable. Substantial evidence supported trial court’
s determination that child’s education expenses were more than
the cost of tuition and included the cost of travel to and from
boarding school.
stepfather was one of child’s legal custodians pursuant to a
court order, his support of child was not voluntary and so
Family Code Sec. 3951--which only applies to voluntary
support--was inapplicable to compensation paid by father. A
child turning 18 does not render the formula for guideline child
support inapplicable. Substantial evidence supported trial court’
s determination that child’s education expenses were more than
the cost of tuition and included the cost of travel to and from
boarding school.
In re: Amber M. (April 27, 2010)
telephonic appearance is sufficient to protect a servicemember’
s rights. Act’s requirement that a servicemember demonstrate
he or she cannot appear in a proceeding and cannot obtain
leave to do so contemplates a physical appearance at the
proceedings. Letter from father’s commanding officer indicating
that father was under orders to deploy to Iraq and would be
unable to attend the contested disposition/jurisdiction hearing
allowed inference that father was not authorized to take leave.
Even if letter did not technically meet all of act’s requirements,
letter was in substantial compliance, and trial court abused its
discretion in failing to grant father’s request for a stay.
telephonic appearance is sufficient to protect a servicemember’
s rights. Act’s requirement that a servicemember demonstrate
he or she cannot appear in a proceeding and cannot obtain
leave to do so contemplates a physical appearance at the
proceedings. Letter from father’s commanding officer indicating
that father was under orders to deploy to Iraq and would be
unable to attend the contested disposition/jurisdiction hearing
allowed inference that father was not authorized to take leave.
Even if letter did not technically meet all of act’s requirements,
letter was in substantial compliance, and trial court abused its
discretion in failing to grant father’s request for a stay.
Marriage of Hartman (June 23, 2010)
Order restraining wife from "interfering with [husband's]
custodial time" was neither vague nor ambiguous, and did not
violate wife's First Amendment rights since it restrained her
from engaging in speech only when it constituted interference
with the custody order.
Order restraining wife from "interfering with [husband's]
custodial time" was neither vague nor ambiguous, and did not
violate wife's First Amendment rights since it restrained her
from engaging in speech only when it constituted interference
with the custody order.
In re: Marriage of Sonne (Sonne II) (June 28, 2010)
In allocating interests in divorcing husband’s retirement
benefits, trial court abused its discretion by awarding wife--who
was married to husband for only a portion of the time he was
working--the entire survivor benefit in exchange for wife’s
compensating husband by surrendering a portion of her share
of his retirement allowance equal to the cost of the survivor
benefit rather than the value of the benefit. Since the value of
the benefit was much greater than its cost, the trial court failed
to reach a result that was fairly representative of the relative
contributions of the separate and community estates. Where
reversal of judgment allocating interests in divorcing husband’s
retirement benefits was likely to have significant financial impact
on wife, trial court was required to reconsider its spousal
support and attorney’s fee rulings on remand.
In allocating interests in divorcing husband’s retirement
benefits, trial court abused its discretion by awarding wife--who
was married to husband for only a portion of the time he was
working--the entire survivor benefit in exchange for wife’s
compensating husband by surrendering a portion of her share
of his retirement allowance equal to the cost of the survivor
benefit rather than the value of the benefit. Since the value of
the benefit was much greater than its cost, the trial court failed
to reach a result that was fairly representative of the relative
contributions of the separate and community estates. Where
reversal of judgment allocating interests in divorcing husband’s
retirement benefits was likely to have significant financial impact
on wife, trial court was required to reconsider its spousal
support and attorney’s fee rulings on remand.
Starr v. Starr (October 15, 2010)
Where wife quitclaimed her interest in a house purchased in
husband’s name based on husband’s promise to put her on the
title after the purchase was completed, husband’s failure to
later act on that promise was constructive fraud.
Where wife quitclaimed her interest in a house purchased in
husband’s name based on husband’s promise to put her on the
title after the purchase was completed, husband’s failure to
later act on that promise was constructive fraud.
Cadwell-Faso v. Faso (January 11, 2011)
Family Code Sec. 1615(c)(2) -- which provides that a prenuptial
agreement is not enforceable unless the court finds that the
party against whom enforcement is sought had at least seven
calendar days between the date he or she was "first presented"
with the agreement and advised to seek independent counsel,
and the time he or she signed the agreement -- does not apply
where the party against whom enforcement is sought was
represented by counsel throughout the transaction.
Family Code Sec. 1615(c)(2) -- which provides that a prenuptial
agreement is not enforceable unless the court finds that the
party against whom enforcement is sought had at least seven
calendar days between the date he or she was "first presented"
with the agreement and advised to seek independent counsel,
and the time he or she signed the agreement -- does not apply
where the party against whom enforcement is sought was
represented by counsel throughout the transaction.
In re: Marriage of Cantrella (January 11, 2011)
Failure to register a marriage certificate did not invalidate a
1991 marriage, under the Family Law Act.
Failure to register a marriage certificate did not invalidate a
1991 marriage, under the Family Law Act.
In re: Marriage of Fossum (January 28, 2011)
Form-of-title presumption does not apply in cases in which it
conflicts with the presumption that one spouse has exerted
undue influence over the other. Undue-influence presumption
applied where wife testified that she freely and voluntarily
executed a quitclaim deed in favor of husband to obtain a more
favorable interest rate on a loan to refinance based on his
promise to restore her name to the title once the refinance was
complete. Trial court lacks discretion to deny attorney fees if
aggrieved spouse shows a breach of fiduciary duty as to the
management and control of community property that does not
rise to the level of fraud, malice, or oppression.
Form-of-title presumption does not apply in cases in which it
conflicts with the presumption that one spouse has exerted
undue influence over the other. Undue-influence presumption
applied where wife testified that she freely and voluntarily
executed a quitclaim deed in favor of husband to obtain a more
favorable interest rate on a loan to refinance based on his
promise to restore her name to the title once the refinance was
complete. Trial court lacks discretion to deny attorney fees if
aggrieved spouse shows a breach of fiduciary duty as to the
management and control of community property that does not
rise to the level of fraud, malice, or oppression.