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How To COLLECT On Family Court ORDERS For Support or Money Judgments In Property Division!

Michael C. Peterson, Esq. — Mon, 22 Apr 2013 05:25:00 GMT

Enforcing California Family Court Orders and Awards for Money

Dear Enlightened Divorce Blog™ Reader - One of the most effective ways to end the misery of high-conflict divorce with a recalcitrant spouse or co-parent is to enforce the money related orders of the Court, where spouses or former intimates refuse to pay them, by pursuing collection with such vigor that the obligor finally becomes exhausted and stops their evasive activity. Often, a party who has flouted court orders without consequence cannot be brought to heel until their wallets and pocket books are finally pried open. But with a stubbornly evasive obligor, and given the complexities of the law in this area, this is no small task.

While I've written generally about enforcement remedies in divorce, legal separations, and child support cases in our Blog, this article gives some very pin-pointed suggestions about how you might succeed in finally collecting money orders and awards issued by a family court judge.

At our office, Michael Peterson recently was faced with navigating the labyrinthine challenges presented by California's rules relating to debt collection practices. He succeeded in collecting approximately $100,000 from a local real estate broker who, despite being ordered to disclose all pending escrows (where he earned substantial commissions) and declining to do so, had also refused to pay court ordered spousal support, attorney fees, and Family Code section 271 sanctions. While our client was" lucky" (she might disagree given the time it took to recover her money) because her former husband had escrows to intercept - it nonetheless required considerable attention on Mike's part to meet all the technical requirements for Writ Enforcement, which as a practical matter meant convincing the in-house attorneys for the escrow companies that our client was in full compliance with all the technical requirements for perfecting Writ enforcement and that we would hold the escrow company directly liable to our client if it wrongly ignored our Writs.

Accordingly, we offer this article to provide insights into the procedural mechanics of effective debt collection practices for purposes of divorce, dissolution of domestic partnerships, paternity and the other family law contexts where one party is ordered to pay the other money but refuses to willingly comply.

P.S. We apologize for the length of this article, and will do our best to trim it down! Also, we are forced to use some obtuse terms in describing family law debt collection procedures, because the statutes themselves use that language.

TWA

Multiple Family Law Judgments and Orders in a Single Case: How Does A Party Collect the Money? Writ of Execution, Income Withholding, and Wage Garnishment

By Michael C. Peterson

This article deals with enforcement of family law financial orders, not enforcement of custody or visitation orders. It is intended to be an introductory primer on the subject; because enforcement and collection law is vast, circumstance-specific, and highly technical (as is family law itself), there are many details this article glosses over or simplifies that should nonetheless be considered by a party seeking to enforce and collect money judgments. Situation specific legal advice from a qualified debt enforcement attorney is highly recommended for any party's particular collection actions.

In effect, the law surrounding enforcement of money orders and judgments arising within family law contexts is piggy-backed onto the statutory schemes that exist for collecting monies within the general civil legal universe. This creates challenges for properly understanding and applying enforcement tools, particularly because missteps in the enforcement process can result in botched opportunities to collect the monies that are due a parent or spouse or former spouse. For instance, in some situations a person who has been awarded money orders in a family law case has brief windows for successfully intercepting funds or other assets that are "on the move". If the timing of the enforcement attempt is off, by the time a Writ of Execution is served upon a third party that holds funds (i.e., a bank or an escrow company) the funds may already have been moved or distributed.

Perhaps a greater frustration can occur because a third party that temporarily holds funds belonging to the debtor may itself misapprehend the rules pertaining to enforcing money judgments, and so wrongly decide to ignore a Writ of Execution. In our office, we recently experienced this scenario when an escrow company that had in fact properly been served with a perfected execution writ followed the advice of its in-house counsel, who somewhat haughtily told us that his client had no obligation to withhold the debtor's commissions (a real estate broker) because on the day that the Writ was served certain escrow contingencies had not yet been fully satisfied. Relying on a generalized statement in a legal treatise, the escrow company's attorney mistakenly applied pre-1984 law that was subsequently changed by legislative enactments and waited until the escrow closed and the funds were paid over to the real estate broker spouse to explain his position. While we immediately disabused him of his mis-read of the current law, the horse had left the barn. This forced us to alert that attorney (in a gentle way) that he had possibly committed legal malpractice, having exposed the escrow company to an independent lawsuit to now collect the monies it should have withheld and paid over to the sheriff's office on behalf of our client.

The last thing that a family law judgment creditor wants is to be forced to sue some third party entity in order to collect (even if success is near certain) - the judgment creditor wants and needs their money now! Ironically, in that case because the broker spouse once managed to avoid the intercept of their funds, he used it for his next escrow hoping to achieve the same result. By that time, however, and following our notice of intention to sue the company the escrow attorney recognized he'd screwed up, and promptly honored the next Writ that we served upon his client. (Ultimately all the funds owing our client were recovered using the procedures described in this article, and the case thereupon settled entirely, obviating the need to sue the escrow company and that attorney never needed to contact his malpractice carrier).

Family law cases present unique collection difficulties that the civil debt collection procedures aren't efficiently designed to address. Unlike general civil cases where there is a single money judgment at the conclusion of the case, family law orders can result in multiple, separate monetary judgments issued at different times, for different reasons, and concerning different subject matters. Unique difficulties in the practical aspects of collection arise within family law because the civil law enforcement of judgment procedures that must be used are designed to collect a single judgment, but family law orders and judgment are often multiple in number and installment-based.

As a hypothetical example, a spouse might receive a "beneficial order" (i.e. payable by the other party) for spousal support of $1,000 per month on January 1, receive a $10,000 attorney's fee order on May 1, receive a $15,000 expert witness fee order on July 1, and a $5,000 monetary sanctions order on September 1. Assume that the obligor spouse (i.e. the person ordered to pay) has not voluntarily paid any of these amounts, and it is now December 1. How does the obligee spouse (i.e. the person ordered to receive payment) collect? The answer is discussed below, but some preliminary collection/enforcement principals should first be explained.

STATUTORY SCHEMES FOR ENFORCING MONEY JUDGMENTS IN GENERAL

The basic statutory authority for enforcement of family law orders is FC section 290. Judgments or orders made or entered under the Family Code are enforceable by the family court by "execution, the appointment of a receiver, or contempt, or by any other order as the court in its discretion determines from time to time to be necessary." FC § 290. Black's Law Dictionary defines "execution" as "judicial enforcement of a money judgment, usually by seizing and selling the debtor's property"; the statutory definition of "writ of execution" per CCP section 699.010 is provided below.

Unlike general civil actions, where a judgment creditor seeking to enforce a money judgment is ordinarily entitled to automatic issuance of a writ of execution by the court clerk under CCP section 699.510(a), family court judges have the discretion to determine whether execution is an appropriate remedy to enforce its prior Family Code orders and judgments. Messenger v. Messenger (1956) 46 C2d 619, 630, 297 P2d 988, 994. Thus, the first step on the road to collection of funds that have become due by execution (or by any other method) is to have the particular order in question reduced to a formal judgment and "entered" as such. See CCP section 664: "[i]n no case is a judgment effectual for any purpose until entered".

Some orders (e.g. non-support orders) require a further court order after a noticed (or in some situations an ex parte) motion reducing the previously ordered amount to a formal judgment, and other orders (e.g. support orders) merely require an appropriate, documented application to the clerk to have the ordered amount(s) reduced to a formal judgment under FC section 5100, et seq. Once a formal money judgment is obtained by the obligee spouse (either through the judge or through the clerk's office), the oblige spouse becomes a "judgment creditor" and the obligor spouse becomes a "judgment debtor."

Once the obligee spouse obtains a judgment, the next step is to determine which enforcement method(s) would achieve the desired result of cash in his or her hand from the obligor/judgment debtor spouse. An obligee is not necessarily limited to a single enforcement method. Please note that the terms "obligee" and "judgment creditor" are used interchangeably with each other in this article, and so too are the terms "obligor" and "judgment debtor".

Several issues must be analyzed and weighed before deciding on a collection method:

Does the obligor spouse have a source of income or otherwise have the ability to pay the money (e.g. did he or she did become unemployed after the order was made)?
Is the obligor spouse a traditional wage or salary employee or a self-employed person such that their wages/salary can or cannot be garnished directly from the employer? Collecting against business owners obligor spouses presents special problems and limits the useful remedies of the obligee. Garnishing wage-earning employees is generally much more simple.
Does (or will) the obligor have non-community property assets in his or her possession that can be seized and sold by the sheriff? If so, what is the nature of these assets - do they include bank accounts (optimal), or are the only assets items of personal property like cars, equipment, and the like that could be seized and sold?
Does (or will) a third-party have possession of assets held for the benefit of the obligor spouse (such as with a self-employed realtor whose commissions earned from the sale of a property is or will be held by an escrow company, or an attorney whose contingency fee is, or will be, held by an insurance company or client even if only for an instant in time)?
What county, state, or country is the obligor spouse's property located in?

Of the FC section 290 enforcement methods, contempt is an expensive and slow avenue of recourse for the obligee/judgment creditor spouse that can effectively put a hold on the entire case (given the contemnor's 5th Amendment rights to not be forced to self-incriminate), but it can be extremely effective because most people are highly averse to jail time and would pay any money they have to avoid it. In our office, we sometimes employ contempt proceedings together with the other remedies described herein. That being said, this article does not focus on contempt as an enforcement method.

ENFORCEMENT BY WRIT OF EXECUTION

A writ of execution orders a law enforcement officer to obtain satisfaction of a judgment for money or for possession of property by seizing tangible real or personal property or funds of the judgment debtor for delivery (or for sale and delivery of the proceeds) to the judgment creditor. CCP section 699.010, et seq. Generally, all of the obligor's property is subject to execution, even if in the possession of a third person. CCP section 699.710. So too is an obligor's co-ownership interests in property with a third person (such a partnership interest), but subject to a vast set of specific property-type statutory limitations and special procedures (discussed below).

In order for a writ of execution to issue, there must be an underlying judgment (as discussed above). Once a formal family law judgment is entered and if the obligee/judgment creditor spouse is looking to non-wage/salary property of the obligor/judgment debtor spouse to satisfy it, obtaining a writ of execution is simply a matter of preparing and submitting a Writ of Execution Form EJ-130, with proper information therein, to the clerk of the court for signature and seal. Alternatively, an obligee/judgment creditor spouse looking to obtain satisfaction from the wages/salary of the obligor/judgment debtor will prepare and obtain the judge's signature on either an Income Withholding Order or a Wage Assignment Order. In either scenario, the next step is then to levy on the property sought to satisfy the judgment.

EXECUTION BASICS AND CLAIMS OF EXEMPTION

An execution lien attaches only onto the judgment debtor's interest in the property (i.e., not to interests of third parties). Execution liens are subject to specific statutory exemptions under CCP section 704.010, et seq. A list of the CCP section 704.010 exemptions is published by the California Judicial Council, form number EJ-155, which is downloadable on-line at www.courts.ca.gov; this list should be approached with caution as it can be misleading in its simple descriptions of exemptions, and further review to the particular exemption statute itself and a practice guide on the particular statute is highly recommended.

Exemptions can be partial as to the total value/sale price of the asset such that the obligor/judgment creditor can only receive back a portion of the seized property or its sale proceeds (where the property is sold because it is not capable of division), and the balance is delivered to the debtor.

A money judgment can be enforced against the following types of property, but not by writ of execution; other enforcement procedures must be utilized to reach these assets (CCP section 699.720(b): An alcoholic beverage license; a partnership interest held by the judgment debtor (where the partnership itself is not a judgment debtor); the judgment debtor's interest as a member of a limited liability company (where the limited liability company is not a judgment debtor); a cause of action that is the subject of a pending lawsuit; a judgment in favor of the judgment debtor that is not yet final; a debt, other than earnings, owing to the judgment debtor by a public entity; the loan value of an unmatured life insurance, endowment or annuity policy; a franchise (license) granted by a public entity and all the rights and privileges thereof; the interest of a trust beneficiary; any non-vested interest in property (including contingent remainders, executory interests, etc.); patents or copyrights; and property in a guardianship or conservatorship estate. CCP § 699.720(a).

Levying against non-cash personal property can be a real hassle, and the costs of collection, storage and sale can itself be formidable and eat up some of the value of the money award in terms of attorney fees and costs for collection in the first instance. Let us apply the foregoing principles in an example: Say a husband owns an antique collector car (acquired by he and his father prior to the marriage with his wife) and both the father and the husband are on title to the car. The wife is awarded $10,000 for attorney's fees (hopefully to be used to litigate the family law case, not to be used up in collecting the $10,000), payable by the husband forthwith. A couple months after the $10,000 attorney's fee order is made, the husband has paid nothing to the wife under the attorney's fee order. The wife goes back to the judge (on a noticed motion basis) and obtains a formal money judgment for the $10,000. She takes the judgment and a filled-in writ of execution to the family law clerk, who seals and signs the writ, gives her the original writ and several certified copies, and tells her the next step is to have the sheriff levy on assets of the husband. She then takes the writ, a filled in notice of levy, sheriff's instructions describing the antique collector car to the sheriff to seize and sell the car, and the appropriate levying fee to the sheriff's court services office (this step is a bit more complicated than stated here, as discussed below). However, the wife can only reach the husband's one-half interest in the antique car by execution because it is also half owned by a third-party, the husband's father.

Upon levy/seizure, the antique car is sold for $22,000. One-half of the sale proceeds of this vehicle (i.e. $11,000) is given to the father (who files and obtains a third-party claim order) by the sheriff, and the 'other one-half' (i.e. the other $11,000) would remain with the levying officer until one of two events occur: (1) there is a statutory 15-day time period (measured from the date the husband was served with a copy of the writ of execution and a copy of the notice of levy – by mail to the husband's last known address okay, but mail service cannot simply not merely to the husband's attorney alone – good practice is to serve both the husband and his attorney) for the husband to file a claim of exemption that must first pass without husband having filed a claim of exemption or other challenge, at which point wife's $10,000 claim (plus the levy fees and daily interest from the date of entry of the formal money judgment – not the date of the original attorney's fees order) would be paid out to her by the sheriff (according to statute, the sheriff must do so within 30 days of the sheriff's receipt of the car's sale proceeds if no claim of exemption is filed by the husband) of the remaining balance of the "other one-half" (i.e. $1,000, less the levying fee and daily accrued interest) is given to the husband, or (2) the husband files a claim of exemption for automobiles under CCP section 704.010, the matter is heard, and the court decides he is entitled to the $2,300 exemption under CCP § 704.010. The Court would order that the sheriff distribute $8,700 (less levying fees and daily interest) to the wife (i.e. $11,000 of remaining proceeds, minus the $2,300 exemption) and $2,300 to the husband. The wife writ of execution for the remaining, unsatisfied portion of the writ's balance (i.e. $2,300, plus levying fees and daily interest) would still be good to levy on other (non-employment income, non-community property) assets she can find of the husband.

Levying against non-cash personal property is therefore, in our view, a remedy of last resort.

FC Section 5100, ET SEQ. STREAMLINED PROCEDURES FOR SPOUSAL SUPPORT ARREARS

Certain types of obligations receive priority, expedited treatment, like child and spousal support. Unfortunately, other orders issued at the same time, like attorney fee orders, don't. Enforcement of support orders as against non-wage/salary property of a support obligor are afforded essentially ex parte (i.e., without notice and prior court approval) importance and treatment under FC section 5100.

FC section 5100 provides that, notwithstanding Section 290, child, family and spousal support orders are enforceable by writ of execution without prior court approval. Under FC section 5104, an application for writ of execution to enforce a support judgment pursuant to FC § 5100 can be filed in the clerk's office. It must be accompanied by an affidavit stating: (1) the total amount of support due and unpaid on the date of the application, and (2) if interest on the overdue installments is sought, the total amount of interest, and the amount of each due and unpaid installment and the date it became due (per CCP § 685.010, the legal rate of interest on money judgments is 10% simple interest per year).

Attorneys often use a computer program called the CFLR Executioner or another program called Xarrears, into which they input the applicable information (date the orders issued, date installments due, and credits for those that are received), and attach the program's printout to the obligee spouse's application to show the correct calculation of the information required by FC § 5104, including statutory interest. The FC section 5104 affidavit must be filed in the action and a copy must be attached to the Writ of Execution delivered to the levying officer for service on the judgment debtor. A writ will issue from the court clerk pursuant to the FC § 5100, et seq. procedure on mandatory Judicial Council Form EJ–130 (Writ of Execution), but it must be filled in properly by the obligee upon submission to the court clerk. An exemplar of a FC § 5104 affidavit is provided here: ______________.

MULTIPLE JUDGMENTS IN A SINGLE WRIT OF EXECUTION

If the writ relates only to a single money judgment (e.g. a $10,000 attorney's fee order), preparing and submitting the writ to the clerk (and as a practical matter, subsequently to the sheriff's department for levy on property) for issuance (i.e. getting the clerk's signature and court seal on the writ) is a relatively simple matter.

The California Judicial Council has approved for optional use an official form Writ of Execution (Form EJ–130). This is a multipurpose form that can also be used as a writ of possession (e.g. for evicting tenants) or sale. Thus, the judgment creditor must take care to check the appropriate boxes. The form should be completed in full except for the seal and signature of the clerk. At items "11" through "18," the oblige/judgment creditor spouse must provide the following information about the judgment (see CCP section 699.520(e)-(g)): the total amount of the money judgment as entered or renewed (item "11"); post-judgment costs added pursuant to CCP § 685.090 (item "12"); the total of the judgment and costs added together (item "13"); the amount of any applicable credits (item "14"); the subtotal after the credits are subtracted from the judgment and costs (item "15"); accrued interest, reduced by any partial satisfactions or amounts no longer enforceable (supported by an affidavit (item "16"); the fee for issuance of the writ (item "17"); and the total amount needed to satisfy the judgment on the day the writ is issued (i.e., the total of items "15," "16" and "17" as item "18"). Item "19(a)" provides for the levying officer to add daily interest accruing from the date the writ is issued (i.e., at the legal rate on the amount shown in item "15"). Item "19(b)" provides for the levying officer to pay directly to the court costs included in the judgment (item "11") and the fee for issuing the writ (item "17").

To obtain accrued interest, the obligee/judgment creditor spouse must also file an affidavit with the court clerk stating the basis for interest (i.e. the amount of interest due from the date of entry or renewal of the judgment until the date of the affidavit). Adjustments/credits must be included for any prior partial satisfactions of the judgment (i.e. payments received by the obligee/judgment creditor spouse under the judgment), something that the legal software programs mentioned above are very useful for. CCP section 685.050. The Judicial Council form Memorandum of Costs After Judgment, Acknowledgment of Credit and Declaration of Accrued Interest (Form MC–012) is used for these purposes. The Clerk of the Court where the judgment was entered will issue a Writ of Execution upon the judgment creditor's properly documented request and payment of the required fee (currently $25). CCP section 699.510(a). A separate writ of execution must be issued for each county in which a levy is to be made (i.e. should be issued for each county in which the obligor/judgment debtor spouse has property located), because writs of execution are directed to the levying officer of a particular county. CCP section 699.510(a).

However, returning to the example above, where multiple orders have been made in a family law case, some for support and some for non-support, the matter becomes more problematic. The clerk is not permitted to issue multiple writs from a single case number for different orders/judgments issued at different times; they can only issue one writ per case number per county at any given point in time.

At our local courthouse in Indio, California I ran into this exact problem a month ago – the Judicial Counsel Writ of Execution Form EJ-130 is structured for general civil execution where only one money judgment issues from a general civil law courtroom. I prepared a writ that mathematically totaled all the past judgments onto page one of the writ for items 5 and 11 to 19 – WRONG. What the sheriff requires (based on the method of its tracking writs and levies in its computer system) is that the information required on page one of the writ, items 5 and 11 to 19, is to separate out each judgment onto pleading paper attached to the writ, and for each judgment described the items 5 and 11 to 19, individually. An exemplar of a Writ of Execution for multiple family law judgments is provided here: ________________. [Coming soon!].

ENFORCEMENT BY WAGE GARNISHMENT ASSIGNMENT/WITHHOLDING EXECUTION

For most cases, the obligor spouse is a regular wage or salary employee such that the obligee spouse can collect by a Wage Assignment Order or Income Withholding Order pursuant to FC section 5200, et seq. This type of execution is one of the least problematic ways to enforce family court financial orders. A Writ of Execution Form EJ-130 is not needed for wage/salary seizure and satisfaction of an obligation, whether for support or for non-support.

Whenever a support order is made or modified, the court must include in the order an earnings assignment order for support requiring the obligor's employer to pay to the obligee a portion of the obligor's earnings to be paid as will be sufficient to pay (a) the support amount ordered by the court, and (b) an amount ordered to be paid toward liquidation of any arrearage. FC section 5230(a)(1) & (2). Like an earnings assignment, an "earnings withholding order" (wage garnishment) intercepts earnings to be paid to an employee/obligor to satisfy a judgment. As to the difference between garnishment and withholding, strictly speaking withholding orders for support issue solely to collect delinquent amounts (arrearages). CCP section 706.030(a). In comparison, an earnings assignment order applies to the obligor's earnings to collect both past arrearages and future installment obligations. Best practice is to get an earnings assignment ordered early on in a family law case to assure the obligee's prompt collection and payment of support obligations as they become due (usually on a two week or monthly periodic basis). This helps the courts and the parties to avoid, for example, problems such as non-payment and build-up of arrearages from the outset. FC sections 5208(a), 5230(a)(1) & (2).

In terms of priority regarding the application of the garnishment/withholding proceeds to past obligations, priority is given first to the current child support obligation, then the current spousal support obligation, then to child support arrears and lastly, to spousal support arrears. FC section 5238(a). When there are multiple assignment orders for the same employee obligor spouse (for example if the obligor spouse has an unpaid judgment balance from a past car accident), the withheld amounts/payments must be prorated by the employer as follows, per FC § 5238(b): if the obligor has more than one assignment for support, the amount of support due for each assignment must be added together; if 50% of the obligor's net disposable earnings will not fully pay all of the assignments for support, the employer must prorate it first among all of the current support assignments in the same proportion that each assignment bears to the total current support owed; and any remainder must be applied to the assignments for arrearage support in the same proportion that each assignment bears to the total arrearage owed. These allocation instructions are contained in the Form FL–435 Earnings Assignment Order for Spousal or Partner Support.

There are three separate sets of earnings assignment orders for support forms used for difference scenarios; all three are available and downloadable on line at www.courts.ca.gov. In spousal/partner support cases, the Form FL–435 Earnings Assignment Order for Spousal or Partner Support must be used. This assignment order for spousal/partner support form is not to be used for child or family support order collection and enforcement. Rather, all earnings assignments for child or family support "shall be issued" on the standardized federal form (in California, Form FL–195) as required by federal law (42 USC section 666). FC section 5208(b). The Form FL–196 form has instructions for properly completing the FL–195 form. An order assigning retirement benefits for child or spousal support is enforceable against an ERISA-governed plan only if it satisfies federal law requirements for a Qualified Domestic Relations Order (QDRO). 29 USC § 1056(d). The Judicial Council has approved for optional use a form Qualified Domestic Relations Order for Support, Form FL–460, that when properly completed, will satisfy QDRO requirements.

Basically, once a wage assignment/withholding order issues by the Clerk of the Court pursuant to a judgment/order, it must then be served on the obligor/judgment debtor's employer. It may be served on the employer by first-class mail as provided by in CCP section 1013, or it may be personally served on the employer. FC section 5232. Service on the employer must include the documents the employer is required to deliver to the obligor under FC section 5234. FC section 5232. Within 10 days of service of the assignment/withholding order, the employer must deliver to the obligor/spouse a copy of the assignment/withholding order, a statement of the obligor's rights to seek to quash, modify or stay service of the order, and a blank form the obligor can file to request a hearing to quash, modify or stay service of the order and instructions on how to file the form and obtain a hearing date (FC section 5234(b)). It is the obligee/judgment creditor spouse's responsibility to serve these required documents upon the employer for delivery to the obligor/judgment creditor spouse. FC section 5232.

Unless automatically exempt by statute or unless a claim of exemption has been filed, unpaid earnings for personal services (e.g. wages, salary, bonuses, etc.) may also be enforced by execution orders to satisfy non-support order debt (i.e. an enforcement method concurrently available with a wage assignment for support; however, earnings assignments for support have priority over court-ordered monies for things like attorney's fees when accounting for credits). Except for earnings assignments for support (described above) and garnishment of a federal employee's pay, levy by execution for non-support orders against an employee/obligor's earnings is governed exclusively by the Wage Garnishment Law (CCP section 706.010, et seq.), including exemptions thereunder available to the obligor spouse. CCP section 706.020. In comparison, levy by execution for non-support orders against a non-employee's income (e.g. in the case of a realtor who is paid by an escrow company at the close of a realty transaction) is governed by Enforcement of Judgment Law, including its applicable exemptions, generally applicable to all civil case judgments. The procedures for both obtaining and for defending against earnings withholding for non-support financial orders is set forth in CCP sections 706.100–706.109. These procedures are unique to earnings withholding for non-support financial orders as to wage/salary employee obligor/judgment debtor spouses; they do not apply to general a Writ of Execution – that enforcement method alone must be used to seize property from a non-wage/salary obligor/judgment debtor spouse (i.e. self-employed persons receiving income from third-parties, as with a realtor receiving to-be-receiving monies from the close of an escrow or a CPA to-be-receiving monies from his clients).

Upon the obligee spouse's service of a wage withholding order on the obligor spouse's employer, the employer must withhold the employee's nonexempt earnings for all pay periods during the withholding period, and must pay the withheld amount to the levying officer no later than the 15th of each month. In DCSS cases, special rules apply. A levying officer is required to pay the amounts received to the obligor spouse at least once every 30 days. CCP sections 706.021, 706.022, 706.025, 706.026. The withheld earnings must be properly credited to the obligor spouse in satisfaction of the support order in the manner specified by CCP section 695.221. CCP section 706.030(c)(7). An employer who fails to comply with the withholding order (assuming proper service, etc.) is liable to the support obligee for the amount not withheld that is otherwise paid to the support obligee. CCP section 706.030(c)(4). The Judicial Council has adopted a special set of "wage garnishment" (earnings withholding order) forms with strict regulation as to content (Judicial Council forms WG–001, et seq.). CCP § 706.120. When withholding is ordered to satisfy a support judgment, Form WG–004 should be used. For non-support judgments (e.g. an attorney's fees judgment) are being enforced by wage garnishment, Form WG–002 should be used.

The obligor/judgment debtor spouse is entitled to an automatic exemption under any wage garnishment scenario, but this is not necessarily true for non-wage garnishment (i.e. a realtor paid commissions by the third-party escrow company). Under federal law, for an employee the maximum amount subject to execution (garnishment, etc.) to enforce money judgments generally is the lesser of (i) 25% of the employee's weekly "disposable earnings" (net earnings after deductions required to be withheld for federal, state and local taxes, social security, and other governmental retirement programs required by law, 15 USC § 1672 (b)), or (ii) the amount by which the disposable earnings for the week exceed 30 times the federal minimum hourly wage. Thus, up to 75% of the employee obligor spouse's weekly disposable earnings is automatically exempt. 15 USC section 1673(a). In addition to the automatic federal (and essentially equivalent state) exemption, an exemption may be claimed by the judgment debtor for those employment earnings determined by a judge to be necessary for personal and family support. CCP section 706.051(a),(b). This additional state law claim of exemption is not available if: The debt was incurred pursuant to an order or award for payment of attorney fees under FC sections 2030, 3121 or 3557; the debt was incurred for personal services rendered by a present or former employee of the debtor; the order is a CCP section 706.030 withholding order for support (if so, maximum exemption is determined by 15 USC section 1673(b)(2) and CCP section 706.052; or the order is a withholding order for taxes.

ENFORCEMENT BY LEVY AFTER ISSUANCE OF A WRIT OF EXECUTION IN A NON-WAGE GARNISHMENT/INCOME WITHHOLDING SCENARIO

More problematic situations arise in cases where an obligor spouse is self-employed and income or assets cannot be reached by the above-described wage garnishment procedures. But at the same time, many claims of exemption available to an obligor-employee relating to earnings are not available to a self-employed obligor spouse if the asset is levied upon before it reaches the self-employed obligor spouse.

FC section 4600, et seq., provides for an obtuse and expensive way to enforce child support arrearages by way of an asset deposit and sale order as "an extraordinary remedy for cases of bad faith failure to pay child support obligations." FC section 4600. However, I believe the standard Writ of Execution procedures more easily accomplish the substantially similar effects of the asset deposit procedure of FC section 4600, and focus on the writ and levy in the rest of this article.

Say an obligee/judgment creditor spouse has obtained a Writ of Execution with multiple separate judgments included therein. What is the next step? In a simple word: levy. More specifically, levy on the obligor/judgment debtor spouse's non-wage/salary property.

Generally, after a Writ of Execution is issued, it must be delivered to the levying officer with instructions and the required fee. The levying officer then levies upon specified property of the judgment debtor spouse by taking it into custody or otherwise subjecting it to a lien in favor of the judgment creditor. The property levied upon may thereafter be sold at an execution sale to satisfy the judgment (or, in some cases as with cash, collected and disbursed to the obligee/judgment creditor spouse).

The first step in the levy process is to deliver to the levying officer the original writ (and required copies), written instructions and required fee. The "levying officer" is the sheriff or marshal of the county to which the writ is directed (CCP section 680.260). Exactly who performs this function differs from county to county; in Riverside County it is the Sheriff's Court Services division. Moreover, although they are not "levying officers," registered process servers may initiate many types of levies (subject to the general exception where seizure of property is required – only a duly authorized peace officer may levy by seizure). In either case, the levying officer's fee must still be paid; and the levying officer must return the writ to court. Use of a registered process server is very helpful in scenarios where the obligee/judgment creditor spouse learns about money that will be paid in the near future to the obligor/judgment debtor spouse, and it is urgent that you move quickly – the Indio Sheriff's Court Services department presently has a two-month backlog of levies for mere service such that money or assets may be lost to the obligor/judgment debtor spouse should the obligee/judgment creditor spouse wait for the sheriff to come to his or her levy file.

A levying officer will only levy the Writ of Execution as instructed by the judgment creditor spouse. The instructions are in writing, and must include the information "needed or requested by the levying officer" to make a valid levy. CCP section 687.010(a). In other words, the instruction form must be completely filled out and its own internal instructions complied with. The creditor's instructions must also include: An adequate description of the property to be levied upon, its location; a statement of whether the property is a dwelling and, if so, whether it is real or personal property; the correct legal name of the judgment debtor; and the correct name and address of any third person upon whom the levying officer is required to serve the writ or notice of levy.

Many levying officers have preprinted instruction forms; if so, they should generally be used. Before submitting instructions it is a good idea for a judgment creditor spouse to contact the levying officer at their office and find out exactly what information is required for the particular levy; different types of property require different types of information and procedure. Helpful information is often available online. For Riverside County, the applicable forms and other helpful information can be found at: http://www.riversidesheriff.org/services/process-services-forms.asp

The judgment creditor must deposit with the levying officer money sufficient to cover the costs of carrying out the instructions. The basic fee for levying a writ is $35. Gov.C. section 26720.9. However, some levies cost a great deal more (e.g., some levying officers may require a deposit of $700 or more to levy upon an automobile, and $500 to levy upon and sell real property).

The levying officer's authority to levy begins upon receipt of the Writ of Execution and continues for 180 days after the date of its issuance. Thereafter, no further levies may be made thereunder. However a successive Writ of Execution may be issued by the Clerk of the Court upon the levying officer's return of the original (i.e. predecessor) writ to the clerk.

There are four basic methods by which a Writ of Execution can be levied on property to create an execution lien on non-wage property of the obligor/judgment debtor spouse: physical seizure of the property; garnishment; recording a copy of the writ and notice of levy with the County Recorder's office for real property; or delivery of a copy of the writ to the levying officer. The method required in a particular case depends upon whether the property involved is real or personal and, if personal, whether tangible or intangible; the particular method also depends on whether the property subject to levy is in the possession of the judgment debtor spouse or in the possession of a third party. Generally, the levying officer seizes (i.e. takes custody) of tangible personal property if it is in the judgment debtor's possession. However, if tangible personal property is in the control of a third party the levying officer may not seize it; garnishment is the proper term for collection and enforcement this scenario (and bear in mind, I am not discussing wage garnishment; that is governed by the Wage Garnishment Law procedures described above). To effectively garnish, the third person must be served with a copy of the Writ of Execution and a Notice of Levy issued by the levying officer (this process can be completed by a registered process server to speed up the garnishment process). The third person must thereafter deliver the property to the levying officer or file a memorandum with the levying officer as to why the property cannot be delivered. This same procedure (i.e. garnishment) is used to levy upon a debt owed by a third person to the obligor judgment debtor spouse, other than for employment wages/salary). For real property, a copy of a Writ of Execution and a copy of a Notice of Levy is recorded with the property's situs county clerk's recording office, including for growing crops, timber and minerals. For property that is already in the custody of the levying officer (e.g., under attachment), levy upon it is completed simply by delivering a copy of the Writ of Execution to the levying officer (a so-called "book levy").

All of the above execution methods require the preparation and filing of a Notice of Levy (Form EJ-150) by the judgment creditor spouse with the levying officer at the same time as filing the Writ of Execution and instructions (in cases where property of the obligor/judgment debtor spouse is held by multiple third-parties, a Notice of Levy for each third-party must be prepared and filed with the levying officer). Some of the above methods of levy (e.g., garnishment) also require service of a Notice of Levy on the judgment debtor when (or promptly after) the levy is made. CCP section 700.010. In the Notice of Levy, the property of the judgment debtor spouse that the judgment creditor spouse seeks to levy upon must be described at item "1b." This description should be worded as broadly as possible, and words of limitation should be avoided. The total amount necessary to satisfy the judgment must be stated at item "2." The total amount due (less partial satisfactions), levy fee, sheriff's disbursement fee, recoverable costs and daily interest may be specified here as well. The capacity in which the person is being served or notified must be indicated at item "3" (i.e. specify whether the Notice of Levy is being directed to a judgment debtor spouse or a third-party 'garnishee', etc.).

In a garnishment scenario, promptly after a levy is made, the levying officer (or registered process server if levy is by such person) must serve on the judgment debtor spouse (personally or by mail is fine) with the following: A copy of the Writ of Execution; a copy (or copies) of the Notice of Levy; if the judgment debtor is a natural person, a copy of Judicial Council form EJ–155, listing the state and federal exemptions that may be available to the judgment debtor and the published list of CCP section 703.140(b) exemption dollar amounts; and any affidavit of identity for names of the debtor listed on the writ of execution. CCP section 700.010.

As stated above, there can be situations where having a registered process server is optimal to perfect a levy. Again, a registered process server may levy a writ of execution only where authorized by CCP section 699.080, below (essentially levies that do not require actual seizure of the property). Specifically, a registered process server may levy on: real property, pursuant to CCP section 700.015; growing crops, timber to be cut, or minerals (including oil and gas) to be extracted, and accounts receivable resulting from the sale thereof at the wellhead or mine-head, pursuant to CCP section 700.020; personal property in the custody of a levying officer, pursuant to CCP section 700.050; personal property used as a dwelling (e.g. mobile homes), pursuant to CCP section 700.080(a); deposit accounts, pursuant to CCP sections 700.140, 700.160; contents of a safe deposit box, pursuant to CCP section 700.150; accounts receivable or general intangibles, pursuant to CCP section 700.170; final money judgments, pursuant to CCP section 700.190; and the judgment debtor's interest in personal property in the estate of a decedent, pursuant to CCP section 700.200. CCP section 699.080(a).

Before levying the Writ of Execution, a registered process server must deposit a copy of the writ with the levying officer of the county where the levy is to be made, and pay the fee provided in Gov.C. section 26721. CCP section 699.080(b). At the time of the levy, the registered process server must comply with the same levy, posting and service requirements applicable to the levying officer as if a formal levying officer was conducting the levy. The registered process server must also request any third person served (i.e. a garnishee) to send a memorandum to the levying officer as required by CCP section 701.030. Within five court days after the levy's initial issuance by the levying officer, the registered process server must file with the levying officer the following documents: the original writ of execution; a proof of service by the process server stating how the writ was levied and proof of service of a copy of the Writ of Execution, Notice of Levy on each person required to be served (i.e. the obligor/judgment creditor spouse, and each third-party garnishee, the latter must also receive a form Garnishee's Memorandum); and the written levying officer instructions from the judgment creditor. CCP section 699.080(d). It is crucial that the registered process server complies with this requirement precisely; if the levying officer does not have the proper documents within the five day period, any property it receives under the levy (e..g from third party garnishees) will be immediately returned to such tendering person for want of a perfected levy. The process server may levy more than once under the same Writ of Execution so long as the writ remains valid (i.e. for 180 days after its issuance by the Clerk of the Court), such that multiple assets or rights to payment can be reached by a single writ where a balance still remains outstanding. CCP § 699.080(g).

In deciding whether to go forward on a levy on a given, specific asset, a judgment creditor spouse and his/her attorney should consider: (a) the value of the judgment debtor spouse's interest in the asset; (b) the marketability of the asset; (c) the cost of the levy (d) if applicable, the time it will take to sell the asset; (e) whether the levy is actually necessary to satisfy the judgment (considering the value of the asset and the amount of the judgment); and (f) what exemptions could be available to the judgment debtor spouse with respect to the particular asset. Always remember, only the judgment debtor spouse's net equity (i.e. he or she may own a $50,000 car, but a bank might hold a lien of $48,000 in the same car) in non-exempt property may be reached, that levies on marketable personal property will likely result in quicker and less costly satisfaction of a judgment compared to liens on real property, and that levy on intangible property such as bank accounts and accounts receivable is optimal as it is less expensive (no sale or storage fees) and are less likely to be subject to a third-party's prior encumbrance (i.e. a security interest by a bank in a vehicle).

To levy upon real property, the levying officer (or registered process server) must record with the county recorder of the situs county where the property is located: a copy of the Writ of Execution and a Notice of Levy. CCP section 700.015(a). The Notice of Levy must contain a legal description and state that the judgment debtor's interest in the real property. CCP section 700.015(a). Immediately after recording, the levying officer (or registered process server) must (in addition to service on the judgment debtor) serve a copy of the Writ of Execution and a Notice of Levy on at least one adult occupant of the property or on a management level employee/agent of the occupant, or an adult member of the occupant's household found on the property. If unable to effect personal service in the above manner, the levying officer (or registered process server) must post a copy of the Writ of Execution and the Notice of Levy at a "conspicuous place" on the real property (CCP section 700.015(c); primary doorways affixed by heavy duct tape is a good method)

To levy upon a judgment debtor spouse's tangible personal property in the possession or control of a third person, the levying officer (or registered process server) must personally serve a copy of the Writ of Execution and a Notice of Levy on the third person (who becomes a garnishee). As discusses above, it is advisable to also serve the third-party with a blank Memorandum of Garnishee (Form EJ-152). Within 10 days after service, the third party must either deliver the property or debt levied upon, or provide the levying officer with the Form EJ-152 garnishee's memorandum stating the third party's reasons for failure to deliver the judgment debtor spouse's property to the levying officer. Absent "good cause" for the third party's refusal, such garnishee ordinarily must: tender to the levying officer the property of the judgment debtor levied upon that was in the possession or control of the third person at the time of levy; execute and deliver to the levying officer any documents necessary to transfer title to such property; and where the levy is upon an "obligation" owing to the judgment debtor, pay to the levying officer amounts currently due at the time of the levy and amounts coming due and payable thereafter while the execution lien remains in effect (i.e. two years from issuance of writ). CCP section 701.010(b). Absent "good cause", a garnishee who fails to comply with the turnover orders in the Notice of Levy becomes personally liable to the judgment creditor spouse for damages resulting from such non-compliance; in such a situation the judgment creditor spouse may file a motion under CCP section 701.020 to enforce this liability and seek damages from the third party.

In my collection efforts regarding a self-employed judgment debtor realtor spouse, I ran into the problem of the attorney for the third party escrow company claiming that the spouse's realty commissions were not subject to the levy because the commission was not due and payable at the moment that the Writ of Execution and Notice of Levy was served on the escrow company. The attorney's position was claimed to be supported by some pre-1984 case law, First Central Coast Bank v. Cuesta Title Guarantee Co. (1983) 143 Cal.App.3d 12, 191 Cal.Rptr. 433 [holding that a levy was ineffective to realtor commissions that became due and payable to a judgment debtor after the service of the writ and notice of levy]. I pointed out that his cited case (indeed all the line of cases dealing with a judgment debtor's contingent interests in property such as escrow commissions) predated the enactment of CCP section 701.010, particularly subsection (b)(2)(B). It provides: "(b) Unless the third person has good cause for failure or refusal to do so: (1) The third person shall deliver to the levying officer any of the property levied upon that is in the possession or under the control of the third person at the time of levy unless the third person claims the right to possession of the property. (2) To the extent that the third person does not deny an obligation levied upon, or claim a priority over the judgment creditor's lien, the third person shall pay to the levying officer both of the following: (A) The amount of the obligation levied upon that is due and payable to the judgment debtor at the time of levy. (B) Amounts that become due and payable to the judgment debtor on the obligation levied upon during the period of the execution lien" (emphasis added). In essence, I believe (and was successful in convincing the escrow company's attorney to agree) that the legislative effect of the 1984 enactment of CCP section 701.010(b)(2)(B) is that the line of contingent property interest cases are moot (although no reported appeal has expressly held so). In other words, prior to 1984, a judgment creditor of a realtor had to play a timing game of collection; the levy was only effective for 'a snapshot in time', but after 1984 the game changed such that the same judgment creditor had a two year 'dragnet' to capture all monies that became due and payable to the judgment debtor by the third party after the service requirements for the levy were satisfied. Suffice it to say, we collected the money for our judgment creditor spouse client.

To levy on bank deposits or property in safe deposit boxes, these assets can be reached only if the levying officer (or registered process server) personally serves a copy of the Writ of Execution and a Notice of Levy on: (1) the branch where the deposit account or safe deposit box is maintained; or (2), in the case of deposit accounts, at a centralized location within the state designated by the financial institution. CCP sections 700.140(a), 700.150(a). Sometimes a wily judgment debtor will deposit monies or assets into the deposit account of safe deposit of a third person A specific court order must first be obtained by the judgment creditor spouse in order to levy on a deposit account or safe deposit box held in the name of a person or persons other than the judgment debtor, and a copy of the order (along with the Writ of Execution and Notice of Levy) must be served on the third-persons along with the writ and a notice of levy (CCP section 700.160(a)). There are a couple of exceptions to this pre-levy order requirement: if the third-person is the judgment debtor's spouse, a fictitious name used only by the judgment debtor or his or her spouse, or an additional name of a spouse as described in an affidavit of identity then the levy can proceed without a prior court order. Where a deposit account or safe deposit box is held in the name of the judgment debtor's spouse, the judgment creditor can prepare a declaration or affidavit attesting to the marital relationship and file it with the financial institution at the time of levy (in lieu of a pre-levy court order). CCP section 700.160(b)(2). Where the account or box is held in a fictitious business name, the Writ of Execution and Notice of Levy must be served on the financial institution with a certified copy of an unexpired fictitious business name statement (obtainable from the county assessor/record's office) showing that only the judgment debtor and/or his/her spouse is doing business under the fictitious business name. CCP section 700.160(b)(3). An execution levy on a bank deposit account reaches all funds in the account at the instant of levy, and it also reaches uncollected funds (i.e. checks or items that have been deposited but not yet credited). CCP section 700.140(a). The bank may not permit removal of any of the contents of a safe deposit box while the lien is in effect, except as directed by the levying officer. CCP section 700.150(c).

OTHER ISSUES

Many other potential issues can arise in collection/enforcement actions: These include out-of-state judgments, third-party claims and undertakings procedures, stays, orders in aid of collection, enforcement of non-money judgments (e.g. injunctions), amendments to prior documents, appointments of receivers, special procedures for state and local government agencies, and for probate-involved assets, etc. A couple of general points are helpful to be aware of. First, except for properly domesticated out-of-county, out-of-state, and foreign judgments, enforcement proceedings generally must be commenced in the court where the underlying order or judgment was rendered. Second, enforcement remedies are subject to stay by appeal, reconciliation of the parties, some 'set-off' situations, the obligor spouse's own contempt action against the oblige spouse, stay by bankruptcy in certain situations, stay the obligor's incarceration or institutionalization in some child support cases, and the affirmative defenses of latches, estoppel, and void as against public policy. Contempt proceedings for unpaid support are also subject to a three-year statute of limitations per CCP § 1218.5(b).

CONCLUSION

Collection and enforcement of judgments, even in the narrower context of family law cases only, is still a huge and complex area of the law. Technical precision is required for valid enforcement methods to be effective. Readers are cautioned not to rely fully on this article as it relates to their particular circumstances, and they should consult with an attorney with substantial experience in collection and enforcement within the family law context. This article is written as an introductory primer and to be used for educational purposes only. Nevertheless, I hope many will find its contents helpful, insightful, and result in a just outcome.

~ M.C.P. ~

Indio Family Court Comm. Gregory Olson | Riverside County Family Law Judges

Thurman Arnold, C.F.L.S. — Wed, 27 Mar 2013 15:35:00 GMT

This is reprinted from an interview for the March, 2013 Desert Bar Associations monthly Family Law Section newsletter. The link to the issue itself is at the bottom of the page.

FLS COMMUNITY SPOTLIGHT

RIVERSIDE COUNTY COMMISSIONER GREGORY J. OLSON:

“I Have the Greatest Job In the World!”

By T.W. Arnold

In any discussion with Greg Olson about his work as a Family Court Commissioner, two attributes become immediately apparent: His graciousness and dedication to public service. One might assume he finds his job to be difficult, but he doesn’t see it that way. He told me with a grin that “I have the greatest job in the world."

This generosity of spirit was demonstrated by his willingness to open up for an interview for the FLS, especially considering that he is generally a fairly private person outside the halls of the Larson Justice Center. Because he has been working for the County of Riverside in one capacity or another since graduating law school in 1988, there is almost no information available about him on the Internet – which one would expect since he has never been in private practice, and he likely considers that anonymity to be a good thing. In February, 2007, the Daily Journal published a “Judicial Profile” that is noteworthy in part because nothing about Olson’s attitudes seems to have changed in the intervening six years. Well-grounded and even-mannered, Comm. Olson is clearly comfortable with his responsibilities and confident in his style of judging. What you see is what you get! And, it isn’t likely to change much.

Comm. Olson’s undergraduate studies were done at Seattle University, an institution deeply grounded in a 450 year old Jesuit educational discipline. Our newest Pontiff, Pope Francis, hails from that tradition. Olson next attended the University of San Diego School of Law. While a student he never expected to become involved with family law, taking a single course on domestic relations. (Come to think of it, so did I – probably this is true of you as well; as David Byrne might sing, ‘How did we get here?’). Before graduating he briefly clerked for a civil law firm, but found that working inside an office for a law firm was “boring”. What really grabbed his attention was a summer stint during his second year clerking for the Riverside County Public Defender’s Office, and from that point on he knew what he was going to do.

Commissioner Olson became licensed as an attorney in 1990, and was thrilled to be offered full-time employment at the PD’s office. He was quickly seduced by the “nitty gritty” world of the criminal defense lawyer, and became passionately fascinated about anything involving trials, and especially the cross-examination and closing argument phases of his cases. “Those are the two things that I miss about not being a lawyer,” he told me.

As a public defender he handled everything from minor misdemeanors to rapes, child molestations, and murders. He defended some 35 to 40 criminal defendants before Indio juries. He continued that work as a trial attorney for fifteen years, until he decided to become a Court Commissioner.

As he somewhat wistfully admits now that he sits on the opposite side of the table, after 15 years he was “ready for a change” - of sorts. After all, in his role as a bench officer he still does trial work but now he gets to sustain his own objections!

_________________

As with any newly appointed judge or court commissioner, when Olson became a bench officer he had little choice as to his assignments. If he was ever reluctant to embrace any of these, he gives no hint of it – another sure thing about Comm. Olson is that he takes in stride whatever comes his way (and given his height, these are big steps). “I’m here to help the court,” he says. “I’m here to help the community, and whatever they asked me to do I would say ‘yes’”.

He began his life as a Court Commissioner managing the Small Claims Department. Soon after that he was assigned to the misdemeanor pre-trial calendar, which included responsibility for arraignments and preliminary hearings, and deciding pre-trial motions. He filled that role for six years, until he was re-assigned to Family Court effective January 1 of last year.

His Small Claims experience turned out to be excellent preparation for family court disputes, because those litigants also had highly emotional attachments to their money. Some of the best advice he got as a newly minted judicial officer was never to rule from the bench in those cases because the parties’ fighting would surely re-erupt in earnest. He tested it in his first trial and “immediately they started fighting again, and I thought, wow, it’s true.” Of course, he observes, in Small Claims there is usually a clear winner and loser. “In family law it is not about winning or losing, ultimately,” he notes. In custody contests his focus is on the best interests of children. When adjudicating property and spousal support issues, he is steered by principles of equity and fairness, and the parties’ needs and abilities to pay.

He believes strongly that people should settle their cases, but realizes that if many of those who appear before him could do that on their own, they already would have. He stubbornly reminds litigants that they can and should settle their matters between themselves. But he is realistic: By the time many people find themselves in his courtroom, “most are tired and they just want somebody to make a decision.” He doesn’t shrink from imposing the finality that they seek, if they cannot figure their way out on their own.

Olson finds family law “very interesting” but “very emotional.” His approach towards this familiar aspect of the family court experience is that “you let people vent a little bit, then you have to say – hey – we’ve got to move on. I try to listen, but a lot of it isn’t productive because [the parties sometimes] just want to get back at the other person. I understand this, but it doesn’t really help. It really doesn’t sway me either.” People who are convinced that they are the “good spouse,” and that the other is the “bad spouse,” aren’t likely to gain much traction before this Commissioner. He confesses that some afternoons he becomes pretty worn out with the back and forth.

One of the ways that he deals with high emotions is to demonstrate for the parties that he has read their declarations – he is a meticulous file reader – by summarizing some of what the disputants have written or, for instance, expressed to a Child Custody Recommending Counselor. “I tell them that this is what I’ve read, and I kind of give it back to them.” Those who’ve sat in his courtroom have heard him reassure self-represented parties that “I’ve read your file and you don’t need to tell me again.” This is one way that his intuitive style of ‘empathetic listening’ positively impacts disputants in his department.

Judge Dale Wells remarked,

"Commissioner Olson has an exemplary judicial demeanor – he never loses his cool, no matter what the provocation. But more than that, he has the kind of practical common sense that family law litigants need.

When they are out of control, he stays in control and issues down-to-earth orders that are in the best interest of the litigants and, more important, their children. Family law litigants are likely to hear these ‘Olsonisms’ when they are acting out: ‘Your kid is the best thing you’ll ever do in life,’ or ‘This is the mother/father of the greatest thing you’ll ever do, and you need to respect her/him.’ And when the parents just can’t help pushing each other’s buttons by using their children to send their hateful messages to each other, he might say something like, ‘Now don’t pin a note to his/her blankie.’”

Most days he is one of the first bench officers to arrive at the Larson Justice Center. Often, but not always, he beats Judge Wells. He regularly puts in a nine hour day. He generally doesn’t work from home, though he can access court files on line – he is more efficient getting his work done at the courthouse, and he has a healthy boundary that ‘work is for work’ and ‘home is about family.’ “I really like to separate the two,” he said. Still, he admits he slips into the courthouse some weekends when “it’s quiet.”

In terms of preparing for his cases, Comm. Olson normally starts his file review the day before the hearing. He prefers to sleep on the more vexing problems, and to let what he reads settle in. He will prep on his breaks, and especially during afternoons when he doesn’t have a trial. Often he reviews the file for a second or third time the day of the hearing. This is when his understanding and views about the dispute become “solid.”

Don’t be surprised if Olson asks questions of the witnesses. He sees this as one of his functions as a fact-finder, in order to get the information he needs to make reasoned decisions based upon the law. Sometimes “I’m going to ask a question if it hasn’t been asked, because I need to know the answer.”

Even though he has never experienced the financial realities of maintaining a divorce related practice, he is not insensitive towards the family lawyers who appear before him on fee applications. He said “It’s always important to give me your personal statement, to break it down and tell me where you are coming from.” He wants specifics, not because he is particularly a detail kind of guy - he claims he isn’t (but Olson sure does pay attention to things). He is more likely to be persuaded by the Big Picture, and you would benefit by giving him the basis for why he should do what you believe he should on fee requests, or on any other issue.

Once in a while he is a bit shocked by the child and temporary spousal support numbers that the Xspouse kicks out. “Sometimes the amount seems crazy one way or the other, but that’s the way of it although of course sometimes I can deviate from [guideline support] and sometimes I do that.” Other times “I have no authority” to ignore what the law presumes to be correct. “I look at the facts in front of me. I really do look at it all case to case.”

He does not strictly enforce former Rule of Court 5.118 (now CRC 5.111), with its ten page limit on requests for orders and responsive declarations. He may not be thrilled to receive a document that is 45 pages in length, but he will scan it and closely read what catches his attention. “I read what they give me. However, if I look at a document that is 45 pages long I take a deep breath before I start it. It’s hard, scrolling 45 pages but I do think it needs to be done because I want to know what the questions are and what is in those documents, because we are not going to put the matter over – we are going to decide it today!” Indeed, for Olson “the more information I get, the better, especially when dealing with financial matters.” He wants to see the “real” numbers, and the backup for things like the expenses, for instance, that a party claims on page 3 of their FL-150. He gives weight to tax returns, check stubs, and bills but as to some items he doesn’t require an entire document. The first page of rental agreement may suffice rather than the entire lease.

He rarely takes short cause matters under submission, unless he needs more information. For long trials or particularly complex disputes, he will sometimes allow the matters to be submitted. He prefers to rule from the bench. He rarely requests closing briefs, unless time constraints justify it. He asks that lawyers and self-represented parties submit the reported cases that they think are important for him to consider.

In preparing for his role as Family Court Commissioner, he relied and continues to rely extensively on Judge’s Wells input and feedback. Some of you may recall that in late 2011 a lanky stranger might slip into Judge Well’s courtroom to sit in the jury box and watch portions of the afternoon trials. Olson describes Wells as “an invaluable resource,” conveying that he would have been a bit lost without Dale’s help. Because Judicial College was scheduled to begin after he was to take the Bench, he read Hogoboom & King’s California Family Law Practice Guide from end to end in order to come up to speed in time for his debut.

From Judge Well’s perspective, Commissioner Olson has exceeded all expectations. Wells candidly stated that

“When Judge [Sherrill] Ellsworth moved Commissioner Greg Olson from the misdemeanor arraignments calendar to family law in January, 2012 I will admit that I had my reservations. For the past nine years, we had an experienced family law commissioner in Mike McCoy. Commissioner McCoy had run a smooth calendar in Department 2E, and he had provided a tremendous service to the family law litigants – and to the community at large. What could a commissioner who had never practiced family law, either as an attorney or as a bench officer, bring to a family law calendar? Surely, nothing good could come from such an assignment!

One year later, I’m happy to know that all my fears and apprehensions were misplaced. The very qualities that made Commissioner Olson excel in every assignment he has had as a bench officer have served him well as he has made the 2E calendar his very own smooth-running machine.

In short, Commissioner Olson is a star! It doesn’t matter what assignment he is given, he will always be a star! But I, for one, am glad that his star is shining right now in Department 2E.”

I think Judge Wells is exactly right. Olson is a career judge and he is going to be serving the public for a long time. I suspect we will increasingly see Commissioner’s Olson’s fingerprints on various improvements in the local courts’ administration of justice. He expects he will continue in his present assignment for another two to three years. He is happy about that, since historically he knew only the criminal side of the courthouse and he enjoys getting to know and interact with all the other sections of the Bar.

Not only are we family law practitioners most fortunate to have such a smart and enthusiastic bench officer to help us through what can be at times a miserable grind, the real beneficiaries are the members of the public who come to Commissioner Olson for clarity, direction and justice.

This is a task is he is well-suited for, since Olson is not only intensely driven, he is the consummate family man. He works out at least five days a week, often running with his wife of nineteen years, usually after first hitting the gym. She is a third grade school teacher. Together they have a 17 year old daughter whom Olson clearly adores. She is leaving this coming Fall to begin college. His eyes sparkle when he speaks about their child. “She is just the greatest thing in the world,” he declares. And without meeting her, you just know that this must be true. If his daughter wants to become a lawyer, his feeling is ‘so be it.’ He takes no credit for her achievements, demurring instead that he and her mother “didn’t do anything, we just got lucky.” One doubts that it is that simple.

It is so critical that attorneys and family court litigants have bench officers who love their work, and who will do all that it takes to move our difficult family law cases to conclusion with poise and compassion. We all have met those judges who do not – particularly in other venues, and we know what that looks like. Now that we’ve had the opportunity to watch Commissioner Greg Olson in action for a little more than a year, we are assured that we have two family law judges, for now, who strive for impeccability.

_________________

Thurman W. Arnold, III, CFLS

Reprinted from the March, 2013 FLS Newsletter

New Cal. Rules of Court, Rule 5.111 - Increasing Litigation Costs Impairs Justice

Thurman Arnold, III, C.F.L.S. — Thu, 21 Mar 2013 02:05:00 GMT

Important Changes to the Rules For Making Evidentiary Objections
to the Contents of Declarations That Support and Oppose Requests for Orders:
Meet California Rules of Court, Rule 5.111

Palm Springs Attorney Michael C. Peterson recently brought to my attention an important change in the procedural rules governing declarations filed in divorce and other family law proceedings. I find this one to be unwise. It rewrites what to do with evidentiary objections to information contained in party and witness declarations where the declarant lacks personal knowledge of "facts" they are asserting. Now any prudent lawyer or self-represented party has an increased burden to draft evidentiary objections to such improper matters, or risk the unsupported facts coming into evidence as though they are the truth. I imagine that the Administrative Office of the Courts is aiming to streamline litigation to ease the burdens on over-worked judges in these days of budgetary crisis, but because matters asserted that require personal knowledge may now come into evidence unless a written objection is filed at least two days prior to the hearing, new Rule 5.111 could have the opposite effect.

Effective January 1, 2013, former Cal. Rules of Court, Rule 5.118 has been repealed. It has been replaced by new Rules of Court, Rule 5.111. Subsections (c)(1) and (2) state:

(1) If a party thinks that a declaration does not meet the requirements of (b)(2) the party must file their objections in writing at least 2 court days before the time of the hearing, or any objection will be considered waived, and the declaration may be considered as evidence. Upon a finding of good cause, objections may be made in writing or orally at the time of the hearing.

(2) If the court does not specifically rule on the objection raised by a party, the objection is presumed overruled. If an appeal is filed, any presumed overrulings can be challenged.

For some cases it will add another layer of expense, effort and paperwork to comply with new Rule 5.111 and file written objections - which, after all, will be required of competent lawyers who practice according to the best standard of care. Since it may force another round of pleadings, I am having a hard time believing that it won't also make more work for judges if they read and rule upon them.

The emotional nature of family law disputes causes litigants - and their attorneys - to say highly reactive and inflammatory things in declarations that they hope will justify the orders they are seeking. Often much of what is said is speculative, irrelevant, is hearsay, lacks foundation, is argumentative, or alludes to alleged facts that violate confidentiality and other privileges (like settlement discussions) which have no place in affidavits or in either side's arguments. Until now a party faced with such vitriol or unsubstantiated "evidence" was free to make oral objections and requests to strike improper materials at the time of the hearing, without having to draft and file written objections that can be lengthy pleadings. While oral objections at the hearing remains the rule as to most species of objections, it is no longer safe not to file written objections to matters asserted that lack a proper foundation based upon personal knowledge.

If a party wishes to object to and strike any of the contents of a declaration, they may file "Evidentiary Objections". To this they attach the challenged declaration. They might circle or draw a box around the sentence(s) that should be stricken and assign a number to them. In their evidentiary objection cover sheet they then list the corresponding objections, along with a box for "overruled" or "granted" that the Court can check. Drafting evidentiary objections can be relatively simple or it can take a lot of time, depending on how much objectionable material there is.

It likewise takes time for judges to read and rule upon such evidentiary objections. This explains why many judicial officers ignore them and don't rule on them on the record, a custom that was approved in the Davenport decision. Presumably individual judges will continue to do what they are comfortable with, so it seems unlikely that new Rule 5.111 will cause them to change their practices. If so, then Rule 5.111 could increase litigation costs without adding benefits.

Am I making too much of this? Maybe. It depends upon how pervasive the improper matters contained in the other party's declaration are. Arguably it isn't a big deal if you are seeking to strike only a few sentences, although it still will require some amount of time that gets passed on to clients as fees.

There is an "efficiency" trend afoot that shifts the costs of litigation for the public generally to the parties themselves. This makes some sense, but remember that divorce is government sponsored, as is marriage. You can't do either without the state's approval, and some form of fee as a tax to pay the costs of bureaucrats, judges, and a cast of thousands. Possibly it is fair that the costs to access justice should become more specific to the individual litigants themselves rather than taxpayers at large.

Until people begin to adopt new strategies for relationship transition instead of high conflict litigation, and as long as some insist on engaging in circular and needless court-related arguments, we will be increasingly at the mercy of "efficiencies" that squeeze access to the courts. The days of litigating as a "matter of right" may be ending. The waste in divorce litigation is every bit as much a reflection of the insanity of our culture as is the debate over whether, for instance, people should receive social security without regard to their wealth. We are busting at our financial seams, and increasingly budget-pinched court administrators that shift the costs of business to individuals is but one reminder.

Is the new rule then actually a good thing? My argument with it is that it is another small step towards making family law cases more expensive for those who cannot afford them. Together with other changes like courtrooms being shuttered as in Los Angeles County, and a growing number of other small things (like being forced to "buy" minute orders that used to be freely available), it is one more nail in the access to justice coffin.

Divorce - or at least high conflict divorce with all its courtroom skirmishing - may soon become the playground only for the wealthier Americans. I worry for those people involuntarily engaged in the dissolution process who find themselves defending against over-exuberant party opponents, some of whom do use litigation costs as a cudgel to force settlements that are less than fair value. It take two willing people to opt out of divorce court and, for instance, to mediate instead. Often one party refuses, and so the other is stuck with the court system.

If you agree or disagree, write me an email or, better yet, comment to this Blog. Join the discussion?

Thurman W. Arnold, III, C.F.L.S.

WEBCAM Divorce and (SECOND OPINION) Family Law Consults!

Thurman Arnold, III, C.F.L.S. — Wed, 13 Mar 2013 02:54:00 GMT

WebCam Divorce and Family Law Consults

You have found this website because you have questions about a system of rules that is alien and certain to dramatically change the landscape of your life, emotionally and financially. I congratulate you for undertaking an inquiry that will help free you from your circumstances. This is a critical step in overcoming the crisis of divorce and family break up.

Our role in this process is to guide you through this foreign land where you hardly speak the language, and naturally have limited insights as to what course to set. Errors on this journey are a costly method of learning. Accessing competent and proven legal assistance assures that you will survive. Surprise! - you may even thrive.

WebCam Divorce Consults with the Law Firm of Thurman W. Arnold offer a number of unique benefits:

Geography restricts access to the best available resources. Small communities offer limited choices for qualified divorce professionals. With WebCam technology you can obtain expert advice about what to do, and not do, in connection with your family law issues or court proceedings from anywhere.

This tool adds a thick layer of confidentiality to your interaction with an attorney. While family lawyers are ethically bound to keep all your secrets, nonetheless some people feel awkward talking to lawyers within their communities, especially where the client or their spouse is a public figure, or works within the legal, medical, ministerial, or law enforcement professions.

It adds a layer of privacy to your interaction with a trusted family law attorney. Even visiting a lawyer's office can be a source of distress, particularly when someone is concerned that just being seen at a certain lawyer's, or practice type of lawyer's, office might become a source of public speculation.

Webcam Divorce Consults enables you to obtain answers to questions from a lawyer whom you will not be hiring for courtroom purposes. Some people are reluctant to disclose everything they should to a lawyer whom they will retain, because the client has secrets.

The process is simple and convenient. Utilizing Skype, IChat, or OoVoo technology allows you to visit with an expert dissolution attorney without ever having to leave your office or home. It is possible to be much more flexible on scheduling.

We can include your personal advisors by video-conference. These may be parents or friends who are giving you day to day feedback. It is often helpful for them to hear what advice you are getting, especially if they are helping you to survive financially. Conversely, when you consult with us, we are a 'hidden' resource that is unknown to those whom you'd rather not know.

It is efficient. A common frustration that people express about consulting with lawyers is wait time, interruptions, and travel to and from offices.

These consultations are less expensive than office meetings with attorneys. You know exactly how much time was used, you have more control over the amount of time you spend. Nothing occurs outside your view. In addition, our office charges lower hourly rates for non-litigation consults by Webcam than for pending cases.

We make it easy to get a second opinion about your family law case without risking the possibility that if you ask hard questions of your present attorney or express doubts about them, she or he might lose her motivation and edge in vigorously representing all your interests.

Consulting with us allows you to test settlement options by an independent attorney who has no investment in the outcome, or the profits of maintaining your case, and who might view your situation with a refreshed eye and so provide input that was missed.

There is no need to pay a retainer to have us accessible by Webcam. You pay as you go, according to the time you actually use.

These are just some of the advantages of utilizing Webcam Divorce Consults - I imagine you can think of others specific to your needs. Call us, we love doing this work, and we love to educate our clients so they can make their best informed decisions!

If you wish to scan it, here is a link to our Testimonial and Endorsements Page. The Law Firm of Thurman W. Arnold strives to set an example among our brothers and sisters in the law that challenges all legal professionals to be the best that we can be!

We Accept All Major Credit Cards

The Law Firm of Thurman W. Arnold, III

A Certified Family Law Specialist

What Is The "B-BUMP" In SPOUSAL SUPPORT Software Programs?

Thurman Arnold, III, C.F.L.S. — Sun, 10 Mar 2013 16:25:00 GMT

Q. I am in the process of settling my divorce with my ex-husband. Our only dispute is a fair amount of spousal support that I will receive. His attorney mentioned something he called the "B-Bump" as a way to come to an agreement. What is it, and how does the B-Bump work?

A. I have written extensively about various aspects of temporary and judgment (often erroneously referred to as "permanent") spousal support, and how it is calculated at different stages of the proceedings. If this issue is important to you, please try the search engine at the upper right of each page, or go to the Blog Categories on my Enlightened Divorce™ Home Page, at left.

For purposes of your question, the short answer begins here: Temporary spousal support describes support that a party may be entitled to receive during the phase of the proceedings that begins with the filing of the Petition for dissolution, or legal separation, and which concludes with entry of a Judgment. Temporary spousal support in California is pretty much universally fixed in the same manner as child support is - using one of the family law computer software programs like the Xspouse or Dissomaster. These legal programs themselves simply crunch the algorithms that are set out in Family Code section 4055. If you look at that statute, you will see that you must be a mathematician to otherwise figure it out. Temporary spousal support is an income-driven analysis - generally your (or his) expenses are irrelevant at this stage. The programs "tax-effect" the numbers, so that the beginning point is always gross, pre-tax income.

Judgment spousal support, somewhat obviously, is any alimony that a party may receive from and after entry of that Judgment. It cannot be determined using the support software programs. Instead, in contested cases that result in a family court trial, the judge is required to determine support amounts based upon an evaluation of each of the factors set forth in Family Code section 4320. It is reversible error for the court to fail to make these findings, especially if requested to do so. This means that while temporary support awards can be reliably predicted once the final numbers that get inputted are determined, it is impossible to specifically predict judgment spousal support outcomes since each case turns on its own facts and unique application of the "4320 factors".

However, the reality is that only a very small fraction of judgment spousal support cases actually to go trial. The overwhelming majority settle - as they should!

Still, a fair settlement can be challenging because the judgment spousal support never gets fixed by a court if the parties sign a Marital Settlement Agreement or Stipulated Judgment. This leaves it to the parties to do so. Most commonly once a support number is agreed upon, they or their attorneys do not evaluate or list what the court would or should of found had it been asked to make 4320 findings. Hence, most settlement agreements leave that out entirely - a very bad practice because a court that is later asked to modify or terminate a judgment spousal support award will have no guidance in the settlement document as to what those factors were or should have been. In settlement agreements prepared by my office, particularly with long-term marriages in excess of ten years, we almost always list our own findings as to each subsection of 4320 that apply to the parties' circumstances. That way, if our client later is seeking to modify, or defend a modification, of their alimony award there is a baseline to measure changes that have occurred since Judgment was entered against.

The Xspouse and the Dissomaster offer another option for resolving and fixing the amount of judgment spousal support. It is called the "B-Bump". The B-Bump is accessed by running a temporary spousal support number in the program (combined with child support numbers if there are minor kids), and then pressing the "control" key and the letter "B". This results in an automatic reduction as to the temporary spousal support number by a floating fixed percentage. This makes some sense on the assumption that in the average case, where there are no special facts like a history of illness or domestic violence (others apply too), judgment spousal support is a smaller number than is temporary spousal support. This is because each satisfies different public policy concerns, and assumes a party may have a greater need for spousal support at the early phases of a divorce where one household is splitting into two. By the time the judgment is entered, it is assumed things have calmed down and people have become accustomed to their new budgetary realities.

I say the fixed percentage is floating because no specific percentage amounts applies equally to every combination of income scenario for each of the two parties. It some situations the amount of judgment spousal support may be reduced by 12 to 15% of the temporary figure, while in others the reduction is much greater and approximates 31% or more. The inclusion of a temporary child support obligation (where both CS and SS are being calculated) will alter or skew the numbers. The numbers change together with the tax-effects of deductible spousal support, but they seek to give some idea of what both parties' net spendable income will be after the calculation is performed.

Accordingly, the reality is that using the B-Bump key function is the equivalent of pulling numbers out of thin air, and the math behind it will not be understandable to anyone on any kind of objective basis. It is like using a magic wand to transmute temporary spousal support figures into judgment support numbers. Still, for settlement purposes it can have some usefulness in a number of respects:

Many people are exhausted and just want to be told what their obligations are and so get on with their lives

Possibly they're familiar with its application from an initial support hearing, and for the payor spouse any lesser monthly sum sounds like a welcome improvement

Spousal support trials are extremely costly and can tend to generate further resentments

The program presents net spendable income numbers that the parties can consider in light of their budgets, and after all settlements can and should be based upon the parties' respective needs and abilities to pay

The B-Bump allows each side to look at numbers that are "objective" in the sense that neither of them created them

They fall where they fall, not quite in the way that dice do but the same for all similarly situated people who are treated, well - "uniformly"

In mediation support numbers are often arrived at through a process that looks to the totality of each spouse's circumstances, in order to meet the needs of each as best as can be accomplished. Of course, one of the benefits of mediation is that numbers aren't imposed upon you by a third party (person or machine), but instead result from a balanced dialogue based upon felt concerns. The net spendable numbers may facilitate this dialogue

Some divorcing couples can have that discussion, others just need a number.

If you need to pull a rabbit out of your hat so that your case can be inexpensively finalized, the B-Bump is one way to do it that at least doesn't leave either side feeling that they caved into the demands of the other. In many ways, having a family court judge fix your judgment spousal support number following a trial on the 4230 factors is every bit as much a mystery and a risk. Some people may prefer a machine telling them what to pay and accept rather than a judicial officer - and the money that using the B-Bump will save (not to mention the acrimony) makes it a viable option in appropriate cases.

I have seen parties to prenuptial agreements agree that the B-Bump will be used to determine spousal support just so they have the certainty of knowing how it will be fixed in advance, in an effort to save legal fees in the event of a subsequent break-up. Whether a court can enforce such a provision remains an open question given that it would otherwise be reversible error for the Court to base judgment suppport on guideline support (especially if in light of the circumstances existing at date of enforcement such a result would be "unconscionable"), but I don't see why the parties can't set up such formulas for resolving disputes if they really mean to, and are fully informed.

Finally, if you do settle the case per the B-Bump, this doesn't obviate the need to address the Section 4320 factors in your settlement agreement, assuming that spousal support is subject to modification in the future by agreement or court order as opposed to nonmodifiable support provisions.

I suspect many family law specialists would vigorously argue with me on this, for good reason - I hope if the idea of relying on the B-Bump disturbs you, that you might weigh in with some comments!

Who knows? Maybe one day we will see family court robot judges pronouncing judgments that, at least, are devoid of emotions!

Thurman W. Arnold, III

FLARPLS or Charging Lien In Your Divorce ? | Assuring Continued Quality Legal Representation

Michael C. Peterson, Esq. — Tue, 05 Mar 2013 03:14:00 GMT

Charging and Family Attorney Real Property Liens: Procedures and Ethical Obligations

Some divorces quickly become obscenely expensive. Family law lawyers see high cost cases commonly where trial appears to be inevitable (because of little to no cooperation by one or both sides), or there is a business subject to community property rules (necessitating an accounting expert), or high conflict regarding custody/visitation of children (necessitating child therapist experts). Of the several methods available for family law attorneys to accept cases or stay the course where their client presently has inadequate liquid assets to pay for legal services as fees accrue (i.e. a financially "out spouse"), liens can offer the benefit of quickly assuring that the out spouse has the best legal counsel available now regardless of ability to pay immediately.

The sad fact is that some "in" spouses endeavor to outspend the other, in an effort to drive them into accepting less than full-value-settlements. Yes, this is evil. It is intended to drive a wedge between the out-spouse and their legal defender, or to force the attorney to get off the case when the financial risks of continued representation are so great that it becomes fiscally irresponsible to continue. As a wedge it works, if the client transfers their discontent over the expense of the process onto their own attorney. Smart clients who have highly competent attorneys don't fall prey to this form of manipulation. Here are some ideas about how to protect your relationship with your attorney so that you can get the representation you deserve. If you are a lawyer they might help you to stand by your client and assure you receive payment for your dedicated work.

There are two principal types of enforceable liens an attorney may receive from a client in connection with securing the fee provisions in a typical retainer fee agreement: charging liens and real property liens.

Charging liens give the attorney a degree of confidence in being paid when the case finishes. However, when a case presents a situation where there is a substantial amount of net equity in the family residence, rental property, or other realty, a real property lien is a viable option for financing the family law case. A family law real property lien offers a particular advantage in a case involving an "in spouse" opponent party who refuses to contribute to the "out spouse's" legal costs, even where attorney fees are court ordered.

There is a fiduciary relationship between all California attorneys and their clients once the retainer agreement is put into place. Prior to that moment clients and attorneys stand at arms-length and can negotiate whatever financial arrangement they feel is appropriate, subject to the Rules of Professional Conduct (herein "CRPC") and the Family Code (herein "FC").

Charging liens are commonplace in almost every attorney's fee agreement, and is created by the inclusion of a lien provision in the attorney fee agreement (or a subsequent, independent agreement) with language such as "Client agrees to pay Attorney ... and hereby gives Attorney a lien upon any money or property awarded to Client in this proceeding for any sums due under this Agreement." Saltarelli & Steponovich v. Douglas (1995) 40 CA4th 1, 6, 46 CR2d 683, 686–687. A charging lien may be used to secure either hourly or contingency fees (or any other variant of payment for services rendered), including family law cases (except the lien cannot reach child support payments or arrears payments). Fletcher v. Davis (2004) 33 C4th 61, 66, 14 CR3d 58, 61; Hoover Reynolds v. Super.Ct. (County of San Diego) (1996) 50 CA4th 1273, 1277, 1280, 58 CR2d 173, 175, 178.

A charging lien gives the attorney an equitable interest "pro tanto" in the client's claim (the proceeds of the client's recovery, if any) as security, and entitles the attorney to "any available equitable remedy necessary to effect payment" of the fees and costs due the attorney. Epstein v. Abrams (1997) 57 CA4th 1159, 1169, 67 CR2d 555, 561. Since an attorney's charging lien becomes effective upon execution of the contract creating the lien, no "notice of lien" need be filed in the pending action to "perfect" the lien; nor is a judgment on the lien a condition precedent to its existence or viability. Waltrip v. Kimberlin (2008) 164 CA4th 517, 525, 79 CR3d 460, 465. A charging lien is non-possessory, therefore it may be enforced even though the attorney does not have actual possession of the fund (the judgment or settlement) recovered for the client. However, the lien may only be enforced by counsel in an independent action against the client (counsel has no right to intervene in the underlying action to establish the amount of the lien or enforce it), and it may not be enforced during the pendency of a family law proceeding. Bandy v. Mt. Diablo Unified School Dist. (1976) 56 CA3d 230, 234, 126 CR 890, 893.

Since a charging lien creates an adverse financial interest to that of the client, it is subject to compliance with CRPC 3–300. The lien's terms must be "fair and reasonable," the transaction must be fully disclosed in writing to the client, the client must be given a copy of the agreement and the opportunity to seek independent legal advice, and the client must thereafter consent to the charging lien in writing. Fletcher v. Davis, supra, 33 C4th at 71–72, 14 CR3d at 65–66.

A template family law charging lien is provided for review in this blog. It is written as a form independent of a family law retainer fee agreement, although its language may be adapted and incorporated into a fee agreement.

A family law real property lien is distinctly different from a charging lien, primarily in that the former gives the attorney a present possessory interest in real property secured by the lien (as opposed to the equitable interest in a client future recovery that are present in a charging lien). As such, a real property lien comes much closer to potentially violating of the "adverse interest" prohibition found in CRPC 3–300 unless strict compliance with the FC, CRPC, and federal lending laws are followed.

Nevertheless a real property lien, created unilaterally by one party through a promissory note and deed of trust on real property, is expressly allowed by FC sections 2033 and 2034 to reach that party's interest in the subject real property (be it his or her separate property interest or his or her share of the community interest). Pursuant to FC section 2033, either party may encumber his or her interest in community real property to pay "reasonable" attorney fees in order to retain or maintain legal counsel in a dissolution, nullity or legal separation proceeding.

As with charging liens, a real property lien first must comply with CRPC 3-300 such that its terms must be "fair and reasonable," the transaction must be fully disclosed in writing to the client, the client must be given a copy of the agreement and the opportunity to seek independent legal advice, and the client must thereafter consent to the charging lien in writing. Read v. State Bar (1991) 53 C3d 394, 410–411, 279 CR 818, 823–824. Two template rule 3-300 letters of disclosure and acknowledgment, respectively, are provided for use and review with this blog.

Moreover (for disciplinary purposes, at minimum), lawyers are ethically barred from purchasing property at a trustee's foreclosure in an action in which the attorney is acting as counsel for a party. CRPC 4–300(A). This Rule effectively precludes the lawyer from taking advantage of any power of sale granted in the secured instrument and eliminates non-judicial foreclosures. As such, while the template deed of trust provided with this blog contains a power of sale provision, its utilization by the attorney is unethical and would be grounds for discipline before the bar committee.

Another important aspect of enforcing a family law real property lien is compliance with applicable state and federal lending requirements (e.g. Notice of and Right to Cancel within a specific time period; Truth in Lending disclosure requirements). 15 USC § 1601, et seq.; 12 CFR § 226.1, et seq. The template letters and acknowledgments also contain the required compliance provisions at this time, but should be updated by the user as new requirements are made frequently to these code sections.

A Notice of the lien and a Declaration from the lien-granting party must be served personally on the other party (or his or her attorney of record) at least 15 days before recordation of the deed of trust. FC § 2033(b). The declaration must set forth: a full description of the encumbered real property; the encumbering party's "belief" as to the property's fair market value, along with supporting "documentation"; prior encumbrances on the property as of the date of the declaration; a list of community assets and liabilities, plus their estimated values, as of the date of the declaration; and the amount of the family law attorney's lien. FC § 2033(b)(1)-(5). A template Notice of Real Property Lien and a template supporting Declaration are provided with this blog.

The party-opponent my object to the real property lien by ex parte motion so as to stay recording of the deed of trust by stating specific objections and showing why recordation of the deed of trust "would likely result in an unequal division of property" or "otherwise be unjust under the circumstances of the case." Fam.C. § 2033(c)(1)-(3). The family law court will then make a determination of whether the real property lien "would likely result in an unequal division of property because it would impair the encumbering party's ability to meet his or her fair share of the community obligations or would otherwise be unjust under the circumstances of the case"; or (ii) for "good cause," limit the amount of the lien. Fam.C. § 2034(a).

Finally, because of the effect of ATROs created upon the filing and issuance of a family law petition and summons prohibiting sales or encumbrances of property without court order, cautious counsel should seek leave from the court to create and perfect a real property lien before using the foregoing procedures if it is not being utilized at the outset of representation before filing the family law action.

We share herewith some free forms that might be useful to you, whether as an attorney or a client, in navigating this technical area of the law!

Template List:

Michael C. Peterson, Esq.

Law Firm of Thurman W. Arnold, III

RED FLAGS That Imply Your SPOUSE May Be PLANNING To CHEAT You!

Thurman Arnold, III — Wed, 27 Feb 2013 02:23:00 GMT

Red Flags That Your Spouse May Be Planning To Cheat You In a Divorce!

Experienced divorce lawyers and forensic CPAs know a few things about suspicious conduct that might escape your attention as it is unfolding, given that the essence of intimate relationships is trust. Family law professionals aren't blinded by stories that consist of promises and pillow-talk, because we don't have an investment in believing that your marriage is working, for the sake of children, conditioning and habit, or even fear of rocking the boat. Possibly this lends us a level of clarity that just isn't reasonably obvious to you.

At the same time, paranoia is a relationship killer. We want your relationship to work out and for you to be happy; we just don't have the same vested interest in believing that this must be so, and we are here to aid you if it isn't.

There are a ton of red flags that separately, or together, might give a clue that something is about to radically change in your life. This is particularly common where one spouse controls the parties' finances and investments. So many women (and men) that I've represented over the years never saw "it" coming, or knew how to react to protect themselves promptly once the evidence became undeniable (and before being served with a Summons and Petition) - except possibly when the question involved intimate betrayal, as opposed to financial betrayal. We know you are sensitive to the former. Sometimes, if you sense the former (lying behavior with regard to intimacy), you need to take the next logical step and consider the latter (that a plan to cheat you of assets, or a set-up to claim reduced income for purposes of child or spousal support, is brewing).

After all, spouses who commit fraud tend to be clumsy - they aren't smooth operators or professional thieves, they are selfish, often narcissistic fools, and they leave a trail. Possibly that all becomes evident much, much later but here are a few things to watch out for if some sixth sense is screaming warnings.

After 30 years of practicing divorce and family law, I see patterns everywhere. No, not in terms of schizophrenic hallucinations or flash backs to a Grateful Dead concert from the early '70s. After representing many hundreds of people, themes relating to their marital experiences repeat. In my opinion, these are much more likely to be perceived by a divorce attorney in their adult prime, rather than a 'youngster' attorney. Age and experience does bear a relation to wisdom.

Here is a short-list (hah!) of signs that might mean something for your circumstances. And they might not. Taken separately they may be hard to decipher, so watch for patterns. At a minimum they may warn you about personality hardwiring that may ripen into something untoward in the near future. Unfortunately, perhaps, women tend to become more focused on the indicia of intimacy betrayal, rather than financial betrayal. At the same time, suspicion can become as much an addiction as any form of obsessive thinking, so grasp whatever balances you can so that you don't create the very monster you fear!

Have you noticed any of the following?

A spouse involved with drugs
Gambling behaviors where money disappears, especially when these accompany regular ATM withdrawals or credit lines with casinos (Indian gaming is a great place to hide cash, because the Indians aren't going to be giving up any customer records - ever)
Hoarding cash
Safe deposit boxes that you don't share access to
Secrecy or anger about your questions concerning financial issues, and a highly emotional reaction to innocent questions that once were discussed freely
Complaints about how poor business has been, when that is not what you perceive to be happening
A new found interest in password protections for emails, financial programs like Quicken or Quick-books
A sudden need for multiple bank accounts, especially when you are not a co-signor
Refusals or discouragements that block your access to family or business financial advisors, like book keepers and tax consultants
Statement that imply your lack of value or participation
Signing tax returns "for you", or "look over there, its a rabbit!" types of deflections when you want to look at Schedule C's or other parts of your tax returns
Removing trusted advisors and replacing them with new faces, like the family CPA being replaced by some stranger to you
Seemingly obsessive work hours, and periods where you just don't know where she or he is
Requests that you sign off on titles to property, or that you add your spouse to separate property "in joint tenancy" 'just in case someone dies'
Loan applications and refinances that don't seem necessary or sensible
Undisclosed credit cards
Intercepting mail, or the sudden use of post office boxes
Apparent gestures of generosity that also have the effect of getting you out of the picture
An unusual need for money infusions, and the assumption of new debt to fund family expenses or the community business
Trips out of town for "business purposes" that never were previously important or required
Complaints and tears about sudden business downturns or losses, especially when things otherwise seem normal
Large cash transactions, whether business or personal
The creation of bank accounts that you don't need to be a co-signor on
A new found interest in expensive toys, whether cars or jewelry
Your spouse tells you what good deals he is making in trading his services (income) for those of others, especially his buddies, in lieu of receiving regular payments
Comments that suggest you contribute nothing to the overall economic equation
Descriptions of the family business as "mine", and reminders how hard he or she works
Seemingly odd comments about business "goodwill," and why no one else could ever run the family business without him or her
Requests that you sign off on retirement plans, or waive rights of survivorship
Sudden emergencies, where you need to sign some document you don't understand
Irritated statements like "Damn it, just trust me!"
Complaints about how his buddy got screwed in his divorce
Questionable and risky business investments with "others"
A spouse who is quick to out of proportion anger when you ask a simple question about finances
More than one cell phone

These are but a few of the things you may encounter that imply the relationship is going south, and that your beloved friend may be way ahead of you in the land of relationship-end, and has already broken the bonds of trust and so is becoming capable of acting without shame or guilt and in accord with a plan. Some form of indignant rage often precedes these breaches, so watch for it.

If you notice more than three of these points surfacing in your day-to-day affairs, especially where they represent a change from what you'd expect and have come to know, it couldn't hurt you to have a discreet consultation with a family law attorney - but denial is hard to overcome, and we arrive at our next phase when we get there!

Thurman W. Arnold, CFLS

I Am UNHAPPY With The FAMILY COURT'S RULING. What Can I Do?

Michael C. Peterson — Tue, 19 Feb 2013 17:00:00 GMT

TIPS FOR CHALLENGING TRIAL COURT RULINGS:
AN OVERVIEW OF NON-APPEAL MECHANISIMS, AND THEIR GROUNDS AND PROCEDURES

So you have been given a decision in your case and you don't like all or part of it. Unfortunately, in family law related cases in particular, there are 'winners' and 'losers' because of the nature of the practice area. Judges must make decisions based on the policy of the law and the weight of the evidence, but from the perspective of the parties involved the judge's decision often does not seem right or fair. Such a belief is understandable in light of the deep emotional feelings people have about the issues involved – the things people (often) hold most sacred, their children and their wealth, have just been impacted significantly.

So what does an unhappy family law litigant do? Understanding what one's rights and options are after the decision is the place to begin in evaluating the next step. This article is intended to inform you of those options in general, the time frame in which they must be utilized, and the grounds they must be based on.

There are options available at the trial court level, including:

Motion for Reconsideration
Motion for New Trial
Motion to Vacate and Enter Different Judgment
Set Aside Motion under CCP § 473
Set Aside After CCP § 473 Time Period Expires
Omitted Property Adjudication
Motion per Fam. C. § 1101 for Breach of Fiduciary Duties
Post-judgment Modification Motions

Beginning with the trial court options, the most commonly used option appears to be a Motion for Reconsideration under Code of Civil Procedure § 1008(a). A party's application for reconsideration must be based upon new or different facts, circumstances or law. It requires a noticed motion set for hearing on the usual minimum notice prescribed by CCP § 1005(b). It must be heard by the same judge or court that made the order for which reconsideration is sought. It must be made within 10 days after service upon the party seeking reconsideration of written notice of entry of the order. The motion must be accompanied by a sworn declaration stating: what application, motion, or order/judgment was made before, when the prior application, motion, or order/judgment was made and to what judge, what order or decisions were made in the order/judgment, and what new or different facts, circumstances or law are intended to be shown in the motion. The supporting declaration must also state a satisfactory reason for the failure of the moving party to present the alleged "new" or "different" evidence or law earlier in the case. New York Times Co. v. Super.Ct. (Wall Street Network, Ltd.) (2005) 135 CA4th 206, 208, 37 CR3d 338, 340.

A Motion for a New Trial can be brought by any party to the judgment, asking the court that rendered the decision to reexamine an issue of fact and render a modified or different decision. CCP §§ 656, 657. While there are seven grounds authorized under CCP § 657, the following are most commonly found in family law proceedings: irregularity in the proceedings of the court or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial; accident or surprise, which ordinary prudence could not have guarded against; newly-discovered evidence, material to the moving party, which could not, with reasonable diligence, have been discovered and produced at trial; insufficiency of the evidence to justify the court's decision, or the decision is against the law; and error in the application of the law occurring at the trial and excepted/objected to by the moving party.

The motion for new trial is raised by serving on each adverse party and filing with the court a "notice of intent" (i.e. notice of motion), specifying the applicable grounds for new trial and whether the motion will be made on affidavits, court minutes, or both. CCP § 659. It must be filed and served no later than the earlier of (i) 15 days after the clerk's mailing of notice of entry of judgment pursuant to CCP § 664.5, (ii) 15 days after a party's service on the moving party of written notice of entry of judgment, or (iii) 180 days after entry of judgment. CCP § 659(2). The deadline cannot be extended by mailing under CCP § 1013, and it cannot be waived or otherwise extended by the parties by agreement.

If the motion is made on grounds of irregularity in the proceedings or abuse of discretion, accident or surprise, or newly discovered evidence (i.e. under CCP § 657(1),(3) or (4)), the applicant must also present supporting affidavits or declarations under penalty of perjury. A motion on other grounds may be made simply on minutes of the court, including depositions and documents offered at the trial and the reporter's transcript. CCP §§ 658, 660. Additionally, all new trial motions must be accompanied by a "memorandum in support," which should include points and authorities.

A Motion to Vacate and Enter Different Judgment may be made on the ground of incorrect or erroneous legal basis for the decision not consistent with or not supported by the facts ... provided such inconsistency materially affects the moving party's substantial rights, entitling him or her to a different judgment. CCP § 663. This motion is used where the evidence supports the statement of decision but the judgment is not consistent therewith, and as such the moving party is not asking for a new trial. A "notice of intention" specifying the grounds and the particulars in which the legal basis for the decision is inconsistent with the facts must be served and filed within the same time a motion for new trial could be filed. CCP § 663a.

A CCP § 473 Set Aside Motion allows the trial court, upon "any terms as may be just," to grant relief to a party from a "judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." CCP § 473(b). Relief under this provision usually is discretionary with the trial court, with the exception being a motion for relief from default, default judgment, or dismissal based on an attorney (but not a self-represented party) affidavit of fault making set aside mandatory if within the jurisdictional timeframe.

Mistake can be of fact or of law. Mistake is tested by "the reasonableness of the misconception and the justifiability of the failure to determine the correct law". Marriage of Jacobs (1982) 128 CA3d 273, 286–287, 180 CR 234, 241–242. A mistake resulting from ignorance of the law or unjustifiable negligence in discovering the law is not ground for CCP § 473(b) discretionary relief. Henderson v. Pacific Gas & Elec. Co. (2010) 187 CA4th 215, 229, 113 CR3d 692, 702.

"Surprise, inadvertence or excusable neglect" allowing for CCP § 473(b) relief must be such as could not have been avoided through the exercise of reasonable care and prudence. Luz v. Lopes (1960) 55 C2d 54, 62, 10 CR 161, 165–166. "[S]urprise" refers to situation where party "is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against". Henderson v. Pacific Gas & Elec. Co., supra, 187 CA4th at 230, 113 CR3d at 702–703. Being too busy, being inexperienced in court proceedings, and an 'unfair' outcome are not forms of justifiable surprise.

An "application" for CCP § 473(b) relief must be made by notice of motion specifying its grounds, be timely filed with the court, and be personally served on the opposing party. The moving party's papers must include "a copy of the answer or other pleading proposed to be filed" in the action. In addition, the application must be accompanied by supporting declaration(s) showing the reasons for the inadvertence, mistake, surprise or neglect, as well as a reasonable explanation for any failure to bring the motion diligently (i.e. the motion is approaching the applicable deadline for filing).

If seeking "mandatory" relief on the basis of attorney fault, the application must be accompanied by the attorney's sworn statement attesting to his or her "mistake, inadvertence, surprise or neglect" that gave rise to the default, default judgment or dismissal, and the set-aside application must be made (i.e. both filed and served) "no more than six months after entry of judgment" running from the clerk's entry of judgment. CCP § 473(b); Sugasawara v. Newland (1994) 27 CA4th 294, 296–297, 32 CR2d 484, 485–486.

Where § 473(b) relief is sought under the discretionary provisions (i.e. not based on attorney fault), the application must be made "within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken." CCP § 473(b). The application is timely "made" only if the notice of motion is both filed with the court and served on the opposing party before expiration of the reasonable time/six-month deadline. Arambula v. Union Carbide Corp. (2005) 128 CA4th 333, 341–342, 26 CR3d 854, 858–859.

The public policy preference for trial on the merits favors resolving doubts in favor of the moving party; thus, except in cases of clear insufficiency of the excuse or unjustified delay in bringing the motion to the other party's prejudice, an order granting § 473(b) relief will be upheld on appeal. Berri v. Rogero (1914) 168 C 736, 740, 145 P 95, 97. The court can condition discretionary § 473(b) relief "upon any terms as may be just." For example, it can order the moving party to pay the other side's costs and attorney fees attributable to the mistake, inadvertence, surprise or neglect, including costs and fees incurred in resisting the motion and expenses that might be suffered by granting the motion.

A Set Aside Motion under Fam.C. § 2120, et seq., is also available after the six month time period has run out to make a § 473 motion based, in post-1992 family actions for judgment involving property division or support as an exclusive remedy. For judgments not involving these issues, the traditional equitable grounds of extrinsic fraud or mistake are applied (e.g. concealment of community property, false service, inability to participate in proceeding, fraudulent inducement by one party to have other not retain counsel or respond in case, or taking matter to judgment while simultaneously reconciling).

Fam.C. § 2120, et seq. works with the provisions of Fam.C. § 2100, et seq. regarding mandatory declarations of disclosure in marital status actions. The moving party's burden is to establish both the presence of at least one of the statutory grounds for relief (see below) and that this resulted in a material disadvantage to him or her. Marriage of Kieturakis (2006) 138 CA4th 56, 89, 41 CR3d 119, 143. Each ground has its own absolute time limit. The grounds and the time limits are: one year for actual fraud; one year for perjured financial statements (i.e. declaration of disclosure, income and expense declaration, etc.); two years for duress (which includes whatever destroys one's free agency and constrains him or her to do what is against his or her will; see Marriage of Balcof (2006) 141 CA4th 1509, 1523, 47 CR3d 183, 193); two years for mental incapacity (i.e. impairment sufficient to avoid a contract or testamentary disposition); one year for mistake as to stipulated or uncontested judgments (but not default judgments); and one year for non-compliance with the statutory disclosure requirements.

Fam.C. § 2120, et seq., set aside proceedings are initiated by "motion" in the underlying family law action or by an "action" to set aside the judgment. Fam.C. §§ 2122, 2125 & 2127. Like all post-judgment motion matters, a § 2120, et seq., motion must be served on the opposing party personally; service on the party's attorney of record alone will not suffice. Fam.C. § 215(a). The party seeking relief bears the burden of proof and must establish both the presence of at least one of the grounds for relief and that this resulted in material disadvantage to him or her.

Upon finding a proper ground for relief (above), the court may set aside only those provisions of the judgment "materially affected by the circumstances" leading to the decision to grant relief, or it may set aside the entire judgment. Fam.C. § 2125.

Coexistent with the set aside motions, an omitted property adjudication under Fam. C. § 2556 may be used to divide assets and debts not disposed of in a judgment. Fam.C. § 2120, et seq., applies when either party is seeking to undo a property division judgment that adjudicated particular assets or liabilities (even partially omitted asset and debts in some situations). In contrast, those statutes have no effect on proceedings to determine community interests in assets and liabilities that were unadjudicated or omitted from the judgment. In the latter situation, either party may seek post-judgment relief under Fam.C. § 2556, for which the court has continuing jurisdiction even without an express reservation of jurisdiction over division of assets and debts (i.e. there is no time bar for a Fam. C. § 2556 adjudication action). Marriage of Moore & Ferrie (1993) 14 CA4th 1472, 1483, 18 CR2d 543, 549, fn. 9. However, prior denial of a set-aside motion is res judicata, thus barring later attempts to relitigate essentially the same issue under the guise of a § 2556 motion. Marriage of Mason (1996) 46 CA4th 1025, 1028, 54 CR2d 263, 265.

In an appropriate case, a party aggrieved by a breach of fiduciary duty of disclosure may pursue an alternative Motion per Fam.C. § 1101(g) or (h) (e.g. for 50% or 100% of asset undisclosed or transferred in breach of fiduciary duty, plus attorney fees and costs; 100% if breach amounted to fraud, oppression, or malice shown by clear and convincing evidence). Marriage of Rossi (2001) 90 CA4th 34, 38–39, 108 CR2d 270, 274 (for W's concealment of CP lottery winnings, H sought alternative remedies of set-aside, breach of warranty, § 1101(h) 100% value award and § 2556 omitted asset adjudication; § 1101(h) 100% value ultimately awarded). Generally, a § 1101 action must be commenced within three years of the date the claimant spouse acquired "actual knowledge that the transaction or event for which the remedy is being sought occurred." Fam.C. § 1101(d)(1).

Additionally, there are some special procedures available to set aside parentage/paternity (filed within two years of the child's birth if paternity established by a Voluntary Declaration of Paternity), for Department of Child Support Services actions (e.g. for 'presumed income' cases and for 'mistaken identity' cases), for clerical errors, and for renewals of judgments.

Bear in mind that many common family law orders such as child support, child custody, and visitation schedules, rather than being re-litigated or set aside, are subject to post-judgment modification by motion (generally based on changed circumstances). Often a modification motion is less expensive than a direct attack on an order or judgment at the trial level or the appellate level, and should be analyzed in conjunction with the options described in detail her.

In conclusion, any of the foregoing trial-level relief options should be utilized immediately; litigants should not wait until the 'eleventh hour' to go see an attorney about evaluating or making any of these motions. Preparation is time consuming and, because of the pre-deadline filing and service requirements, might take a long time to perfect (e.g. to get personal service accomplished, even after the motion is drafted and filed, within an applicable time period). Also bear in mind that this article is intended for introductory and educational purposes only; it does not reflect many sub-issues that might be present in a particular case with its particular facts and history.

The bottom line is that a litigant should consult with and retain an attorney as early as possible after any adversely-perceived decision, order, or judgment (some options are lost as soon as ten days after the order or judgment is noticed). A litigant should consider retaining new counsel, or get a second or third opinion at minimum, should they feel their present counsel has not advocated for them effectively or informed them of their rights and options immediately after an adverse outcome. DO NOT WAIT, AND BE PROACTIVE.

Please use our onboard search engine to find related articles on set-asides!

Michael C. Peterson , Esq.

CHRISTIAN Divorce | Summer Suggestions For Teens and Parents Affected By Divorce | SROM

Thurman Arnold, III, C.F.L.S. — Mon, 11 Feb 2013 16:00:00 GMT

SROM - Outdoor Ministries That Will Serve Children of Divorcing Parents

Some readers of the Enlightened Divorce Blog™ are Christian men and women who find themselves locked in a divorce they do not want. I've found that divorce can be particularly hard for Christian children - and is made even more difficult when one parent acts in a way that severely embarrasses the other parent, or their kids.

One common way I see this occur is when a husband or wife has taken up with another church member. Often the new "couple" will attend services at the same time and place as do the intact family members, which can be mortifying for teenagers, particularly where the break-up is recent and they are suffering deep confusion and grief.

This is a time in these families' life-cycles when strengthening the bonds between children and God is particularly important. There are many ways to accomplish this, and they tend to be very personal. Particularly with teen aged children, refocusing them on higher values may provide not only great solace but wonderful opportunities to grow.

I want to share one resource that might be of interest for helping your children survive and thrive even in the face of family disintegration and reconstruction: a wilderness summer-time leadership ministry that will put them in the hands of highly moral and skilled role models in safe but challenging settings.

Solid Rock Outdoor Ministries (SROM) is celebrating its 30th anniversary of wilderness ministries. It was begun by my cousin, Rev. Drew Arnold, in 1983. Drew has since retired, and his son Andrew Arnold and son-in-law Josh Horak now design and manage the Christian leadership programs.

One particularly interesting outdoor workshop is their 40 days and 40 nights wilderness backpacking trip. There are also missions' trainings, father and son outings, all-women backpacking, female teen trips, and others. SROM's programs aren't developed to serve severely troubled youths, and there may be better options for those situations. Nor is it specifically designed to address divorce related issues and concerns. But it could be perfect for young adults who are experiencing the normal consequences that accompany such trying times.

Based in Laramie, Wyoming, SROM could be exactly what any family interested in beginning or strengthening Christian values, in the midst of family crisis, needs. They have a gorgeous and informative new catalog describing their programs and philosphy which you can access by clicking this link!

T.W. Arnold

__________________

Pre-Marriage TIPS for MEN - Surviving DIVORCE Without A Prenup!

Thurman Arnold, III, C.F.L.S. — Sun, 10 Feb 2013 14:45:00 GMT

Q. What steps can I take to protect my assets from divorce? My fiance refuses to sign a premarital agreement. Can I be protected without a prenup?

A. Let's face it - while many men consult a divorce lawyer after being served with dissolution papers, very few do any investigation about how marriage affects their rights in property before they marry.

This is unfortunate.

I have found that the only event that may bring a husband-to-be to a family law attorney prior to getting married is the possibility of entering into a premarital agreement. Some studies suggest that between 3% and 5% of unmarried couples adopt one. The vast majority of engaged men and women do not.

While the strongest argument for consulting a matrimonial attorney before "tying the knot" is possibly asset protection, even if an executed prenup is not achieved there is another consideration: Learning early on about the marital property and spousal support rules applied in your jurisdiction. The same is, of course, true for women.

___________________

There Is No Excuse For Failing To Inform Yourself About Divorce,

Before You Marry!

The discussion of a premarital contract, whether or not a prenup is actually signed, requires both parties to develop a basic understanding of how divorce related outcomes would change in the face of its provisions.

As is true of most experienced divorce lawyers, I can explain the rules of property characterization, division of debts, and the principles relating to spousal support, custody, and child support in between one to two hours. They are amazingly complex, which is one reason why they trap the unwary so easily and often.

Yet, in my 30 years of practicing family law, the only times I am asked to explain California divorce rules are a) for clients who are already getting divorced or b) when describing what a premarital agreement might accomplish. I can count the number of pre-marriage consultations, in the absence of the above situations, I've been asked to give on my fingers.

Of course, as any past reader of the Enlightened Divorce Blog™ has discovered, I give tips about these issues to men and women throughout my Blog that might well substitute for a premarriage consult, if you take the time to figure it out. Problem is, once again, many of my readers only bump into these tips after their relationship crisis has erupted.

Here's an illustration of a typical situation, about which misconceptions are common: One spouse owns a residence before he remarries. Title is held in their name alone - possibly he acquired sole title in his last divorce. The deed identifies the owner as "John Doe, a divorced man, as his sole and separate property." Never one to give up on life, John marries Jane. There is a mortgage on John's house at date of marriage. One of two things happens next:

(1) John pays the mortgage from his earnings, or from both parties' earnings. In California, it doesn't matter whether Jane actually contributes her own dollars to the mortgage, property taxes, or insurance. Fifty cents of every dollar belongs to Jane anyway, in the absence of a prenup; or

(2) Downstream the home is refinanced - or possibly sold, with the proceeds rolled into the next home (as to which Jane may be placed on title). In the case of it being refinanced, the lender will require that Jane either (a) become a co-obligor on the new loan and be added to title so that the title instrument now reads "John and Jane, husband and wife, as community property" or (b) she may sign a Quitclaim deed giving any interest she might otherwise have "to John, a married man, as his sole and separate property."

Now comes the break up and divorce. Does Jane have an interest in John's premarital home, and if so how is it quantified?

In situation (1), the community estate has acquired an interest in John's separate property home because the mortgage balance, over time, has been reduced with community dollars. Jane owns one-half of the community estate. Although it is commonly supposed that this means that Jane is now entitled to half of the mortgage reduction from the date of marrying on, that is not exactly correct. However, if the principal owing has been reduced, and the value of the home has appreciated, a family law court must reimburse the community (and therefore Jane) that until the marriage unwinds, neither John nor Jane gave much thought to the potential consequences, or more likely that they held mistaken beliefs - for instance, bothmay think that Jane has no interest because she never went on title. How could either of them be expected to know how this works without researching the issue on-line, or consulting with a competent attorney? And what would cause an inquiry in the absence of an impending separation?

In situation (2), in the case of a refinance, John sets the borrowing process in motion, gets loan approval, and a refi escrow is opened. A day or two before it is to close, John gets a call from the escrow officer to drop by with Jane to sign "some papers." Both parties are probably anxious to close the escrow - maybe they are taking money out and are buying something else, or paying off their (joint) consumer debt. They arrive and are handed dozens of document pages to "review" and sign and initial, "here," "here," and "here." One will be a transfer deed. That deed will say one of two things: (i) as to the property, "John, as a married man, hereby transfers, conveys, and assigns his interest to John and Jane, Husband and Wife, as community property"; or (ii) Jane, as a married woman, hereby transfers, conveys and assigns her interest to John, as a married man, as his sole and separate property."

Problem is - unless specifically instructed otherwise, the escrow officer (who, by the way, is likely a woman and knows some of the legal consequences of transfer deeds) will opt to prepare a deed conveying title to the parties jointly. (This doesn't imply a gender conspiracy; public policy favors the creation of joint marital interests). Indeed, it may be that the parties can only qualify for the new loan using both of their credit.

The consequence of a deed from John, to John and Jane, is what the law calls a "transmutation." The home has just become community property and no longer belongs solely to John. John will be later entitled, in the event of a marital dissolution, to be reimbursed for the net value of his separate property interest at the date of the transmutation (execution of the deed). In California these are called Family Code section 2640 credits.. Unless Jane agrees to this value, there will be litigation over what it was, which will include a "Moore-Marsden" analysis in order to fix the reimbursement due the community for paying the mortgage on the community dime.

If Jane signs off on the title, there will be no transmutation. The home will remain John's separate property. Jane nonetheless will continue to accrue her share of a Moore-Marsden apportionment.

If you find this irritatingly complex, your reaction is entirely reasonable.

One thing is near certain - John had no (correct) idea of any of these legal consequences, and turning in one direction created one set of consequences and turning another direction gave rise to a different set. Neither John nor Jane was in a position to make an "informed decision" about these transactions. Instead, the law will impose upon them constructive knowledge and intentions as to each transaction, as a legal fiction.

For John, had he met with a family law specialist, whether he signed a premarital agreement or not, unintended and unknown consequences would have been avoided. He would not be blindsided upon the event of his divorce. He could have made his ensuing decisions differently - and he would have understood their consequences in real-time.

The truth is that most people refuse to seek counsel about how the law treats property interests (and spousal support obligations) before making one of the biggest decisions of their lives. Even though some marital consequences cannot be avoided without one, investigating how a premarital agreement might impact your rights is wise and relatively cheap.

Achieving an enlightened divorce can be as simple as having obtained all the information you need to make intelligent choices, before you marry. Where is the harm in that?

____________________

Thurman W. Arnold, Certified Family Law Specialist

Author, "The Enlightened Divorce Blog™"

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What Should a PRODUCTION DEMAND Request for SUPPORT Purposes? (Part 1)

Thurman Arnold, III, C.F.L.S. — Wed, 06 Feb 2013 15:00:00 GMT

Q. I am representing myself in my divorce. My husband is self-employed. I know he earns more than he claims. We have two children, and I haven't worked in seven years. I feel so stupid now, but I don't know any of the details of his business. How do I get the information to prove his true income, and what should I ask for?

Ann

A. It is entirely common that the "out-spouse" knows little about the community property business or estate, or even the family's true income. Within the web of trust, why would you need to know specifics? Families survive and thrive when one partner is the primary wage-earner, and the other is in charge of managing everything else. You aren't stupid, your just acted honorably.

If "his" business" came into being during your marriage, it is "your" business; if not, the community estate may nonetheless be entitled to participate in increases in its value during the marriage.

The answer to your question depends upon who or what has the information you need. Is some information likely to be in the hands of his CPA, a bookkeeper, his customers, a corporation, or someone else?

There are three common methods for obtaining documents in divorce litigation. They are sometimes referred to as "inspection demands":

A "Demand for Production" directed to a party to the proceedings per California Code of Civil Procedure (CCP) Section 2031.010, et seq.

A "Subpoena Duces Tecum" directed to a party, or another person or entity per CCP § 1987, et seq., that seeks only properly "authenticated" records.

A "Deposition Subpoena" together with a production demand directed to a party or another person or entity (i.e., the "PMK" - person most knowledgeable) per CCP § 2025.010, et seq., where live testimony and cross-examination about the records will occur.

Practically speaking, the information you need may depend upon what you can do with it. For instance, you can request all manner of documents, but as to some only a forensic accountant can make sense of them. Until you get one (or hire an attorney), I'd focus on what is immediately comprehensible and useful to you.

In this Blog I discuss "Demands for Production," but the suggestions below may give you some ideas as to subpoenas to third parties.

Drafting Inspection Requests In Family Law Proceedings

Don't take a shot-gun approach to requesting information - be surgical. You can always make subsequent requests for information. Use the 80-20 principle in deciding what you really need by way of discovery.

I find that the quality and thoroughness of responses to production demands, particularly those directed to the parties themselves, is inversely proportional to how burdensome they are to respond to. Production requests cause a lot of resentment in the responding party because it takes a lot of time to track documents down, and one rightly feels as if they are under a microscope. Similarly, the more questions the greater the likelihood of objections. There is an increasing risk that the responding party will "blow you off" by doing a cursory and incomplete search and/or production.

Avoiding Motions and Commotions

I remember an experienced attorney against whom I cut my teeth in the early 1980's, David Franklin CFLS. He would caution me against making "motions and commotions," which as I recall meant avoiding situations where I might whine to the court about some perceived unfairness or lack of cooperation on the part of the other side (usually his) - because whining only works before age 11. Discovery disputes typically involve a lot of grumbling that judges find unseemly.

You don't want to be forced to file a Motion to Compel a party to comply with their discovery obligations - these are expensive and time-consuming, and discovery motions can stall getting the documents for months. You do not want to get bogged down in motions to compel full compliance with your inspection demands, so you should consider how to make it easier for the other party to comply. This includes not asking for 50 different categories of items.

For instance, there is no limit on the number of requests you can make in a Demand for Production, while you are limited to asking not more than 35 special interrogatories (although you need only serve a proper declaration stating why you need more). This doesn't mean that it is therefore okay to make 50 production requests. If you are forced to file a motion to compel further production, consider that family court bench officers hear them on their "short-cause" calendars. If you demand 50 categories of items and you get 45 objections or refusals, the court is going to have to rule on 45 different questions. This may generate dissonance on the part of a judge, particularly if - as a self-represented party - your questions aren't crafted clearly. While courts can sanction non-complying parties by awarding attorney fees, you are only entitled to fees for the work actually performed by a lawyer. You may recover Family Code section 271 sanctions, however, but this type of sanction requires fairly egregious misconduct.

If the court believes your questions are oppressive or have an improper purpose, you could be the one who gets spanked. By the way, if you've already caused your judge to feel that you are a difficult litigant, be even more wary about over breadth - and be able to formulate a reason why you need what you want.

My practice is to try very hard to avoid requesting more than fifteen or so categories at once.

Remember, each request is supposed to be full and complete of itself (i.e., not reference other requests) and you should avoid disguising multiple requests by jamming a bunch into one run-on request. Parse through the list below to select those most appropriate to your marital circumstances, and if you are going to break them down into more than one set of requests, prioritize what is most immediately important to you. Early on, in the case these typically are the things that would help you make (or resist) a request for support orders.

Also, you will need to consider what time frames are actually relevant. I do not recommend covering a period that includes the entire length of marriage, unless there is something specific you are investigating. Much of that information isn't important to a court, and it is oppressive to ask for things that have no reasonable value to you. You will always want items from and since the date of separation, however. Whether you go back for the prior three years (or more) depends - for example, if you are tracking transactions relating to a particular asset, the time period may well include everything from its date of acquisition on.

Things You Might Want to Request

Personal and corporate income tax records, possibly including W-2's, K-1's, and 1099s as applicable
Personal and business financial statements
Profit and loss statements
Loan documents for the family home, other real estate, lines of credit, and cars and the like
Bank statements. While people commonly ask for canceled checks, and they may be important to a forensic accountant (particularly if they are performing a business valuation as well as a "cash available for support" analysis), unless the checks are attached to the monthly statements it is a real pain for people to copy each check front and back. I will often start with the statements themselves, and then if I find transactions that interest me I'll do a follow-up request as to them. It is extremely expensive to subpoeana these from a bank, since they charge for time and copies. What your ex pays for his cable bill won't be nearly as interesting to the Court as you might find it (because you've had to cancel Showtime)
Brokerage account statements. I am more likely to ask for canceled checks for these accounts, because transactions tend to be larger and fewer
Retirement account statements (pension, 401(ks), IRAs)
Credit card statements
Gift and loan documentation to and from the other party, and particularly relating to third parties like their family members
The existence of safe deposit boxes but not if you believe it is stuffed with cash and know where they are held, since your inquiry could trigger the contents being removed. There are better ways to approach those
Ownership and title documents relating to real property like the family home, and secured debts for automobiles, boats, RVs, etc.
If the other party has an attorney, that attorney's retainer agreement and billing invoices
Revocable and other trust related documents
Expense account reimbursements, if applicable
Copies of the data contained in bookkeeping software, like Quicken and Quick Books, and any reports that exist
Real property and jewelry appraisals, and any others as may apply
Cash receipts books and records
Proof of child care and medical expenses
Corporate or company minute books, shareholder and buy-sell agreements, share certificates
Appointment books and personal calendars
Photographs of relevant items or circumstances (i.e., photos of injuries or police reports if domestic violence is alleged)
Work or job applications
Project bids
Escrow documents and closing statements
Bankruptcy filings
Back-up for documents that were not included in the Declarations of Disclosure

When you frame your requests, don't try to sound like you think a lawyer would - speak like you are talking to a 10 year old, and avoid run-on sentences; complex wording invites objections that may be well-founded.

Contention Requests

There is a whole other class of documents that you will want to request, although you might save it for the second go-around: I call this "contention evidence". If you know that your husband makes a specific claim on any point (e.g., that you transmuted your interest in a business or property from community to his separate property), then you will want "all documents that support [his] claim that [you] transferred, waived, or transmuted any interest in real estate from the date of marriage to the present."

You should view drafting a production demand as an opportunity for you to begin to focus on the real issues and disputes of your case - this is quite helpful and, in fact, it can be equally useful for the other party because it forces them to recognize whether evidentiary support exists for their claims and defenses. Do not approach any discovery as a way of driving the other side's costs up, because at a minimum your's will rise in tandem.

If the other party is employed, one of the first things you might consider doing is a subpoena to his employer seeking all wage, benefits, health insurance, and retirement information. It can take up to 40-50 days to receive subpoenaed records, but hearings on Requests for Orders are typically set 25-35 days out, meaning you won't receive these in time for your hearing if you don't act promptly or coordinate your efforts. But that is a Blog for another day.

~ T. W. Arnold, III, CFLS ~

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"Thank You For Leaving Me," by Farhana Dhalla

Thurman W. Arnold — Tue, 05 Feb 2013 16:00:00 GMT

Thank You For Leaving Me!

by Farhana Dhalla

I recently received the second edition of Farhana Dhalla's book entitled Thank you for Leaving Me - Finding Divinity in Divorce. I first bumped into Farhana almost three years ago, because we are both interested in the emotional consequences of divorce. I think some of you might find it supportive of your experiences.

One of the things I like about Farhana's book is its rawness. Her initial rage at discovering her husband's infidelity is not uncommon territory. Particularly with the women I've represented over the past 30 years, I've seen that the grief that comes from betrayal thrusts deeply into their cores.

Not that men whose partners have strayed don't suffer equally, but I think men suffer differently. Women seek out other women to share their pain, and they deeply soul search because they must know how this could have occurred. Some, like Farhana, even succeed in forgiving their former mate and embracing something larger. Men, on the other hand tend to shut-down, and rarely admit their confusion and hurt with other men, although they may allow their anger. Sometimes this creates a toxicity that manifests in risk-taking behaviors or heart attacks. Possibly males can take a life affirming lesson from her work.

Farhana's journey follows the crumbs of her relationship disaster towards what she calls "the Divine", thereby transmuting her suffering into a form of spiritual awakening. My own discoveries about illusion have come from studying Zen, which for me was a more mind-centered approach (at least initially). Farhana uses her heart instead, and this sweetness is evident as she muses as if we were all her best and closest friends, enjoying a bright afternoon together, and a spot of tea.

Thank You for Leaving Me is an invitation to share the processing that accompanies healing. Farhana makes her evolutionary travels an 'open book,' and so befriends the reader and reminds us that we are not alone. It is a short and easy read, and I think it serves up inspiration and hope. It may help you become emotionally unstuck.

We all love redemption stories, and especially our own.

T.W. Arnold

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The Top Local Family Law Attorneys - Is There An Advantage To Hiring One?

B. Robert Farzad — Tue, 05 Feb 2013 00:12:00 GMT

Guest Blog!

The Local Family Law Attorney - Is There an Advantage to Hiring One?

by B. Robert Farzad, Farzad & Mazarel, ALC

Orange County Divorce and Family Law Attorneys

Ever heard the adage, "a good lawyer knows the law but a great one knows the judge"?

It's a misleading statement of course, but is there some truth to it? Does a great lawyer know the judge? The short answer is "kind of." The expression should be, "good lawyers know their judges' styles."

I am an Orange County divorce lawyer, and President of Farzad & Mazarel, ALC. The far majority of my family law cases are in Orange County, California. I don't venture into the Palm Springs area.

Why?

First, it's pretty darn far and I don't want my clients paying me to drive that kind of distance. Second, even though family law is all I do, I don't want to learn the local procedures, and an Indio family law judge's style - in front of whom I have never appeared - or even the idiosyncrasies of the family law clerk's office in Palm Springs or Indio, or the surrounding courts.

If I have a case in Riverside County, I send it to Thurman. He is the family law lawyer in the Coachella Valley I recommend, and I believe the prospective client who called me for a divorce or family law case would be better served by this "local" family law lawyer.

Let's take a look at why I say this.

Family Law Court's Local Rules

Each county has its own local rules. These rules are published and available to the public. While local rules are not permitted to conflict with state statutes and codes, they are still a significant part of a case's handling and litigation. These local rules can affect how hearings, settlement conference and even trials are handled. When you have a local divorce lawyer who handles cases in that venue on a regular basis, he or she should be familiar with the local rules. When you bring in someone who has rarely appeared in that court, there may be a learning curve.

A Family Law Judge's Style and Preferences

Family law judges are human beings. They have their likes and dislikes. Many of them had a private law practice before they became a judge. The younger ones may still be feeling their way. The older ones may be very set in their ways. Some family law judges have strong opinions on certain aspects of family law. For example, in any venue, some family law judges may more freely award attorney fees against a spouse while others may be more hesitant.

There are numerous examples I could give you about how certain judges in Orange County handle matters differently than others. We are not talking about night and day here, but subtleties that can make a difference to how you prepare for a case and how you present your case.

Availability to Appear in Emergencies

The Orange County family law courthouse is minutes from my law office. If I was given ex parte (emergency) notice on a case in Indio, I would be seriously inconvenienced to drop everything and appear the following day at 8:30 a.m. The advantage of having a local lawyer is their availability, if there is ever an emergency on the case. Thurman is in family court in Indio on a regular basis. I am in Orange County family court on a regular basis. That type of regularity has a distinct advantage to your case. You know your family law lawyer is there at a moment's notice, if you need him.

Knowing the Local Experts

Family law cases often involve expert witnesses. These can be privately retained or court appointed. They include forensic psychologists, forensic CPAs, therapists, minor's counsel and others. Think there is an advantage to being familiar with these local experts? You bet. Like judges they have their peculiar preferences and styles. Experience with the local experts can help you determine who to pick and not to pick and how to handle a case with them once they are on board.

Use Your Common Sense When Choosing Divorce Counsel

There is nothing wrong with hiring an out of town attorney, if you feel you should. Large venues like Los Angeles often get lawyers from all over the place. That is common and accepted. But if you have a chance to hire a great local attorney who is familiar with the local rules, the judges' styles and other issues particular to that county and courthouse, you may find yourself better represented and better served. And, you will save money!

Orange County Divorce and Family Law Attorney B. Robert Farzad

Exclusively Divorce and Family Law

1851 East 1st Street, #1150, Santa Ana, California 92705

(714) 937-1193 or toll free at (877) 857-6500

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Penile LIE DETECTOR Tests: Coming to a FAMILY COURT Near You?

Thurman Arnold, III, C.F.L.S. — Sun, 03 Feb 2013 15:45:00 GMT

Have you ever heard of "phallometric testing"? I confess I had not, until it was twice mentioned (apparently with approval) by Justice Benke in a recent and important decision that reversed a San Diego trial court's grant of visitation to a maternal grandfather (and grandmother) whose daughter was trampled by elephants while on safari, over vigorous objections of the children's father. Ian J. v. Peter M. (1/29/13) D060197 (Fourth Appellate District, Division One). I will discuss the case itself in a separate Blog.

According to on-line literature, phallometric testing provides "objective" information about male sexual arousal and interests, and can therefore be useful in helping to identify deviant sexual interests. I am constantly amazed at how our world is changing, and in particular how so-called objective testing mechanisms are being used to expose what is going on inside our brains and bodies. Justice Benke's decision suggests that we may be hearing more about phallometric testing in child custody related cases. Therefore I did some research on the subject.

Phallometric (PPG) testing employs a device called a penile plethysmograph (not a type of dinosaur), which measures changes in blood flow that affect the circumference of the penis in response to sexual and nonsexual stimuli. One of its uses is to differentiate or identify individuals who manifest high levels of arousal to inappropriate sexual activity, while displaying low levels of arousal to appropriate sexual activity (presumably, perverts are bored by what excites normal men). Final assessment recommendations are based upon ratios between appropriate and inappropriate responses.

Normally, the man being tested in placed in one room and an operator is placed in another, but they are able to communicate. The subject is instructed how to place the measuring gage on his penis, and some initial calibration is performed to achieve a "baseline." It is sensitive enough that the subject may not be able to discern penile circumference changes that nonetheless register on the machine. The subject is presented with erotic materials in the form of audio or visual stimuli. Video stimuli introduces a greater possibility of error, not to mention ethical problems, since apparently this medium is quite powerful and tends to produce the highest arousal rates in viewers.

Also, we all have heard that some people respond more strongly to visual cues than audio, particularly in studies of memory but also in the art of persuasion. Accordingly, audio stimuli is viewed as being more reliable and less problematic. Still, photographs of nude persons of different ages and genders may be displayed for response measurement. Some jurisdictions have amended their penal codes to provide that possession of the standardized stimulus materials does not constitute pornography. With regard to minors, nude photographs may be used, but not of children in sexual acts. Instead, photographs have been obtained from "nudists" of their children, taken with their parents present and with their consent. At least in the United States, using confiscated materials obtained through the exploitation of children or adults has been discouraged for over two decades.

A subject is exposed to stimuli depicting as many as twelve different sexually stimulating fantasies. These sets of sexual situations might cover a full range of child, adolescent, and adult targets for both genders. The penile circumference is recorded on a graph, and these are then used to determine whether the subject is "overly stimulated" to an inappropriate fantasy as compared with an "appropriate" fantasy.

The plethysmograph's validity for measuring sexual arousal is considered by some researchers to be very high. It is considered to reliably indicate age preferences and sexual orientation. Research has shown that child molesters can be detected using the device and "proper stimuli," and that it may predict the future commission of new sexual crimes.

The procedure remains, as one would hope, highly controversial. For instance, in the Czech Republic phallometric testing has been used to verify whether individuals seeking asylum on the basis of sexual orientation are in fact homosexual. The testing is apparently voluntary, but a refusal to allow it may result in a denial of asylum. The test was first developed in Czechoslovakia some 60 years ago, and originally it was used to identify draft dodgers pretending to be gay (and to keep gays out of the military). It was well-received by American therapists and behaviorists, who at that time were attempting to find ways using aversion therapies to transform homosexuals into "straight" men.

A truly scary aspect of this kind of testing is that some 76 countries in the world criminalize same-sex relations, and 8 apply the death penalty. Iraq and Iran two of the worst offenders. Could test results lead to a death sentence?

In the United States, it is commonly used by hospitals, treatment centers for sexual offenders, and prisons and "correctional" facilities. In Utah the testing is a standard intake procedure, to establish a baseline of what must later be overcome before sex offender treatment can be terminated. Clearly it is here to stay, and its use may be spreading.

Might it be used to exculpate a man, whether he be a father or grandfather, from allegations that he is a pervert? Could refusal to submit to such an examination raise an inference of guilty thoughts and sexual deviancy, and so form a basis for a court to deny custody or severely restrict visitation?

Justice Benke felt it important to mention in the procedural history of the case that

"[a]lthough suggested by an expert retained by appellant, the court appointed evaluator did not perform any phallometry, which measures penile response to various stimuli. Notwithstanding ... ambiguous psychosexual test results, based on interviews with other members of the family and the grandfather, the evaluator concluded the grandfather did not pose a substantial risk to his granddaughters.

Given this record, appellant's concerns about permitting the grandfather to have unsupervised visits with his daughters are legitimate. The girls' discomfort in the presence of their grandfather alone supports a parent's vigorous intervention on their behalf. Thus, the family court's order, which requires extended unsupervised visitation with the maternal grandfather, must be reversed."

The appellate court's reference to phallometry implies, for me at least, that such testing might have been deemed relevant to establishing whether grandfather visitation posed a risk to the granddaughters, or not. The decision did not turn on objective proof as much as on a reasonable concern by the father (and the presumptions established by the U.S. Supreme Court in Troxel v. Granville (2000) 530 U.S. 57), and the expressed preferences of the minors involved.

Comments like these in reported decisions constitute clues as to how trial courts should rule on such matters, and family law trial attorneys and self-represented parties may want to consider asking the court to order this form of testing by appropriately trained mental health professionals when molestation or a history of sexual abuse of children is alleged.

Anyway, now we are all better informed!

~ Thurman W. Arnold, III, CFLS ~

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