Recent Blog Posts in April 2011

Marriage of Greenberg (April 28, 2011) 194 Cal.App.4th 1095

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Marriage of Ruiz (4/14/11) 194 Cal.App.4th 348 

In the recently published Fourth Appellate case of Marriage of Ruiz out of Riverside County, the parties' marriage lasted 32 years - married in 1973 (not the summer of love), they separated in March, 2005. A major bone of contention was how to characterize Wife's lump-sum worker's comp settlement of $250,000 received several years before the breakup, which netted $172,364 after attorney fees and costs. Wife believed it was all hers in the absence of proof by Husband of what portion of the money she received should be allocated between compensation for loss of past income verses what portion was intended to compensate her for loss of future earning capacity. Not surprisingly if Husband indeed had the burden of proof on this issue, he was never going to meet it - worker's compensation awards and financial settlements relating to personal injuries are simply gross numbers that some insurance bean counter crunches and then offers a gross settlement to resolve. No one in Wife's work compensation team was thinking about a fixed amount that was intended to resolve temporary compensation benefits as opposed to wife's lifetime loss of income producing ability - these claims just don't get settled in that fashion. Hence, if Husband had the burden of proving an imaginary apportionment he would never be able to do so and Wife would take all.

This case illustrates what can happen where one party or another has the "burden of proof" on a particular issue - often this is a short hand way of saying "you lose."

Four years later their divorce proceedings resulted in a discretionary trial court finding that $103,033 of the award was CP, with a balance of $71,311 being Wife's separate property. This finding was upheld on appeal as a reasonable exercise of discretion by Judge Irma Poole Asberry.

Wife argued that despite the statutory community presumption per Family Code section 760 that property acquired during marriage belongs to the community, existing caselaw (Raphael v. Bloomfield) (2003) 113 Cal.App.4th 617) required a conclusion that the award is community property only to the extent that it is intended to compensate for the injured spouse's reduced income during the marriage and before separation, and for injury-related expenses that were paid with community funds. She urged that the remainder of an injured spouse's recovery is intended to compensate her for their diminished earning capacity and/or medical expenses which continue after the DOS.

Therefore, the Wife here argued that Raphael carved an exception to the rebuttable presumption that all property acquired during marriage is community property, instead creating a presumption that the award is the injured spouse's separate property. If true, this would impose the burden of proof as to allocation upon the noninjured spouse. Hence, she argued, if neither party could show evidence of how the award was calculated the party with the burden of proof would lose. The record on appeal was clear that neither party produced any evidence one way or the other because - frankly - there was and could be none.

Judge Asberry correctly declined to find that the general overriding FC § 760 presumption could be trumped by this supposed exception. Since Wife evidently concluded her best litigation strategy was not to offer any compromise solution for determining the competing community verses separate property interests, the court applied a formula suggested by Husband for apportioning the award as between CP and SP. Wife took and all or nothing position that was a high stakes gamble, and she lost. Interestingly, the decision is clear that had she suggested some other valuation method the trial court could have found that was more equitable than Husband's proposal instead, and it would not have been reversed.

Play hard ball, get slammed.

The rule reiterated by the Ruiz court is simple, fair, and obvious. It is already established that period disability retirement payments which are received during marriage are community property, in that they are intended to compensate the community for loss of income that the injured spouse would otherwise have earned. Periodic disability payments received after separation are the separate property of the injured spouse alone for his or her diminished earning capacity. Citing the California Supreme Court in Marriage of Jones (1975) 13 Cal.3d 457, the Riverside justices stated "[s]o long as the marriage subsists, the [injured spouse's] reduced earnings worked a loss to the community. But such community loss does not continue after dissolution; at that point the earnings or accumulations of each party are the separate property" of each.  "[O]nly such payments as are received during marriage are community property."

But within the context of worker's compensation permanent disability awards, as was presented here, Raphael had concluded that the timing of the award (i.e., whether received before or after separation) should not dictate the outcome - instead the inquiry was what portion was intended to compensate the injured spouse for his/her reduced earnings during the marriage, which would be CP. Again, a question that is not likely to be answered by the non-injured spouse because they have no access to such information assuming it even was part of the settlement calculation; yet, this perhaps reasonably did suggest to Wife's attorney he might successfully argue that the burden of proof was hence placed upon the Husband.

The Ruiz Court decided that neither party had a burden of proof that would create a rebuttable presumption in the favor of one or the other because the trial court properly concluded that the award was part community and part separate property of Wife. The issue was then for the trial court to decide in terms of equitable apportionment of the competing interests. "In doing so, the court may use any method which fairly apportions the assets or its value between community and separate property interests. Because it is the court's obligation to make an equitable apportionment, neither party has the burden of proof in the sense that a failure of proof will result in an award of the asset in its entirety to the other party."

Thus, in equitable apportionment cases involving disability awards, which includes all hybrid mixes of community/separate attributes, a disadvantaged party (here the Husband who could not marshal much less control the evidence of what the worker's comp carrier intended when it settled Wife's case) does not lose simply because of a failure of their access to proof. Instead trial courts are free to fashion any result which works substantial justice. This was fair because nothing indicated that Wife had received any temporary disability benefits during the marriage that got banked - this lump sum settlement was all that she apparently received for the total loss occasioned to her, and to the community, for the injuries she suffered.

To the extent that the Wife argued the trial court's division of the CP amounts vs. the SP amounts was arbitrary, she had no right to complain because she never suggested any other measure that the trial court might use in supporting a different allocation scheme.

So, the lesson is this: Play hardball, get slammed..... (mediate your disputes instead, and don't disconnect from reasonableness - one never knows how a court might rule!)

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

• Secure your pets. Allowing your dog to watch you catch a snake will cause your animal to offer you unwanted assistance, and to encourage it to interact with the rattler the next time it finds one. Since snakes move slowly, many dogs will not notice them and so become deathly curious. However, if they learn that the scent of the snake means something to toy with then you've trained your dog to become a suicide bomber. This same point applies to children.

• Be alert this time of year. Scan the ground as you walk. If you are in the desert or on a trail, the obvious choice is to move on. If you are golfing, pay attention to the edges of the course where they front the desert. Do not poke at the snake, and do not toss stones or objects at it. Keep a healthy distance. Be attentive to insistent barks from your dog, as several years ago I heard Jake outside in the yard bark, bark, barking at something and after 5 or 10 minutes of this I finally got the message and found him several feet from a curled rattler. The first thing I did was grab my pup to carry him inside and closed off his ability to get back out until I'd carried the snake away outside of his view.

• Consider keeping your yard clear of debris or objects that make a good place for snakes to hide under or behind. I try to scan my yard visually as often as I can remember, and I want a clear view. I think one reason they like my garage, beside an easy entry under a door, is that rats and mice can sometimes be found there. Keep your ears open - rattlers are good at rattling. I've often heard them before seeing them, which is great if you like adrenaline rushes.

• If working in the yard, watch where you step and place your hands during this month window or so (and again in September/October). It is now breeding time, and the babies abound in the Fall. In the Palm Springs area the snakes tend to emerge with the first consistent hot weather usually beginning in late March and early April. I am on rattlesnake alert through May. They tend to become less frequently seen during the summer months, except in the early mornings or late evenings. I remember one camping trip in August to Organ Pipe in southern Arizona when I was taking pictures at dusk, only to suddenly notice there was a snake every fifteen feet or so (I slept outside on a cot that night, and awakened to observe a very large specimen 10 feet away crawling over a fallen saguaro - I was younger and more foolish then).

• If you find the snake some place where he is not only not welcome, but causes you a worry that unless he is transhipped elsewhere he will be lounging around, and assuming you are extremely cautious and not hyperventilating, capture him and carry him away if you are otherwise disposed to do so (i.e., not because I suggested this was a good idea). I use one of those extendable tree limb cutting poles with the large metal hook and the nearest deep container within reach - usually a trash can or ice chest with a lid, placed on its side as close to the snake as I can safely be (five feet). Rattlers want to get away from you and will wind their way into these, where they will coil at the bottom. With the pole I can hook the snake mid-body and drag it into the can. Better to avoid the snake altogether, but I'm not about to leave one in my garage or in the yard. At the same time, if you don't know what you are going to do and don't already have the tools to do it with, this may not be a good solution. Forget those nature shows where people capture rattlers and stick them in burlap bags. Never let your hands or feet closer than five feet or so (a rule I often break). Conventional wisdom says they can strike up to half their body length.

• Another option is to keep an eye on the critter and call someone for assistance.

• If you wrestle one into a container, resist the impulse to peer into it at close range.

• Now you have the problem of what to do with it. If you are in a residential area consider calling animal control. Don't put it on the back seat of your SUV for a trip to a safe unloading zone. In my case, I can walk a hundred yards or so and flip the box on its side and dump the snake out. I've yet to (knowingly) bump into the same snake again. 

Now, rattlesnakes are really common in areas that are rocky or abut the desert. Around Palm Springs these areas include Chino Hills, the Mesa, Araby, and south Palm Springs around the Canyon Country Club. Expect to encounter one at almost anytime now in the Indian Canyons. You are not nearly as likely to see one in a highly residential area. But if you live on the edge of the desert, sooner or later you will meet one close up.

Okay, this little guy looks just like the granite rocks and yellow weeds
that dot the local landscape -
here's a closer look:

 
Yesterday (4/16/11)

Other Rattlers I've Met -

 
2010 Garage

 
Move-Away from Neighbor's House 2009


And Surrounding Environs 2007


And some I've not met,... 

 
Jake Arnold

F.T. vs. L.J. (2011) 194 Cal.App.4th 1

F.T. v. L.J. is an important opinion for move-away applicants and their attorneys not just because it clarifies existing law and provides guidance on a host of issues commonly encountered in litigation over these arguably unfortunate situations, but it is going to be widely talked about by the mental health community and will influence how  Evidence Code 730 and Family Code section 3111evaluators report to the courts because of this appellate court's attention to the details for what various FCS ("family court service" employees) and MHP's ("mental health professionals") opined. It appears that some of them, including the court mediators, took their eye off the ball as established by earlier legal precedent on this topic and the information presented to them.

The parties in this case dated for five or six months and this brief time together produced a bouncing baby boy in January, 2006. For the first thirteen months of his life, the child lived with Mom. On February 17, 2007, however, Mother burned her baby's arm with a hot curling iron "apparently to each him a lesson by showing him how hot it was." Father picked the boy up that evening, saw the injury, and took him to the hospital. Hospital staff called CPS and the police. Criminal charges were filed against the mother.

The child was placed with Dad and Mother's visitations were ordered supervised. Two weeks later he filed a petition to establish paternity and an OSC requesting orders for sole legal and physical custody. The parties were directed to attend custody mediation through Family Court Services but were unable to reach agreement, and so the mediator recommended that the child's primary residence be with Father and that Mother have supervised visits. In April, 2007, the parents stipulated to the recommended order "without prejudice to either party."

Five months later Father filed an OSC request seeking an order allowing him to move with the child to Texas. The parties were ordered back into mediation. At that time following a custody review hearing, the trial court removed the supervision requirement for Mom's visitation. Once again (surprise!) the parties could not agree in mediation, and the mediator recommended that Father have primary physical custody and that he be allowed to move, noting that in November, 2007, Mother had pleaded guilty to one count of simple battery on the child and was given four years' probation, and that she had an eleven year old child from a previous relationship who lived with the paternal grandparents.

For unknown reasons Father's request went off calendar at the time of the scheduled December, 2007, move-away hearing. In February, 2008, he refiled his application and psychologist Yanon Volcani, Ph.D., was appointed to conduct a psych evaluation of the parents and child. He issued a report in September, 2008.

Volcani recommended against the Father's proposed move to Texas, believing that it would interfere with this 2 1/2 year old's bonding with Mother because of the distance (based upon current best mental health opinions on the developmental stages of children). Volcani concluded that telephone, webcam, and other means of contact would not be well suited for a child this age, and had concerns whether Father would "enthusiastically" support the child's relationship with his mother. He also felt that mother had learned from her experience of burning the child, and while her action was 'rash, impulsive, and insensitive' the data did not suggest a "broader abusive intent." He recommended that Mother's timeshare be incrementally expanded.

On September 18, 2008, the trial court adopted Volcani's proposed parenting plan as a temporary order pending an evidentiary hearing, without prejudice, based upon findings that this was in the best interests of the minor. The matter was then lost in the limbo of hearing continuances and further court services mediations ultimately until March 5, 2010.

By now Father was requesting permission to move to Washington instead of Texas, and was intending on marrying a woman living there. Mother had married. Lynn Waldman, a Family Court services counselor, reported to the Court that she had learned that the minor child in 2009 began exhibiting rage, temper tantrums, and other behavioral issues at school and that this three year old was seeing a counselor who couldn't explain "where [Child's] anger is coming from. She interviewed Dr. Volcani but developed incorrect impressions about whether he'd last met with the parents over the two ensuing years after his initial report, and other misconceptions. She recommended against the move to Washington, but stated that Father should remain in his role as the primary caregiver.

In February, 2010, Volcani issued a report supplementing his opinions from September, 2008. Father by then had married his fiance, who herself had two teenagers. Volcani had re-interviewed the parents, the new spouses, and the minor's preschool teacher and therapist. He noted that since the initial evaluation that the parents had been co-parenting in a "relatively cooperative and stable manner." The minor was continuing to have rage issues (e.g., throwing a chair and punching another student) but these were improving. Still, because of the child's age it was difficult to know what was causing it.

On March 5, 2010, the trial court held a hearing but did not permit live testimony and denied the Father's request to move. The court made a number of findings which were not supported by the record. Chief among them was the conclusion that the parents "are not communicating" - when in fact Dr. Volcani actually stated otherwise and that their communications had vastly improved over the two years that had passed. Moreover, without any rational MHP support, the trial court concluded that the evidence proved the child's rage, speaking out in his sleep, and bed wetting all had to do with the parents' lack of a meaningful dialog. The court stated it "feels that the anger is coming from the tension between the two parties."

Maybe, but the court didn't pull this conclusion from any evidence before it in terms of an expert assessment and conclusion that this was the case (the child's own therapist couldn't explain the child's behaviors). Some conclusions apparently exceed what common sense would otherwise suggest.

By the way, what is a three year old doing with a therapist?

Anyway, the Court adopted Volcani's conclusion that the child's healthy development was being impeded, although on different grounds than Volcani had expressed. The court concluded "Father's reasons for the move, that is to join a new wife and family, are not sufficient and a new wife and family in Washington is not a sufficiently necessary reason to move the residence of [Child] to Washington...."

Huh?

Moreover, the Court implied that if Father decided to move anyway that the Court would take custody away from dad and give it to mother, a really bad idea under existing caselaw because of its coercive overtones.

Enter the Established Law of Move-Away

This is what makes this case important - a judge that was justifiably bothered by the impact that the relocation would have on the relationship between a parent (mother) and child understandably struggled not to permit the move. But she was wrong and the appellate court scolds her harshly for it. Her decision was not an exercise of informed discretion.

At the same time, some of the Father's arguments were off-track as well. For instance, he argued that he had a presumptive right to move under authority of Family Code section 7501 which states: " A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child." The Fourth Appellate District ruled that 7501 only applies to "final" custody determinations, and not those that are "temporary," following the case of Montenegro v. Diaz (2001) 26 Cal.4th 249. Here the parties had lived under a "stipulation" for two years, but had never reduced it to a final agreement and no court had ever ruled as to any contested matter within the context of an evidentiary hearing. This is a rule that most family law attorneys already know well (which is why the smart ones write their orders to declare the custody agreements favoring their clients as "final" orders). The practical effect of this fact in this case was that "Mother did not have an initial burden to show [that] Child would suffer detriment were he to move with Father to Washington." 

Father also argued that because Mother had been convicted of battering her son, a presumption arose under Family Code section 3044 that she should not have custody of the boy that was possibly "conclusive" if not merely rebuttable. While the idea that the presumption might be conclusive based evidently upon the appalling seriousness of intentionally burning a child is ... creative ... it doesn't track in the slightest what California law says on the subject, and was quickly disposed of by the appellate judges. The justices ruled that "[a] section 3044 finding of domestic violence 'in a family law case changes the burden of persuasion as to the best interests test, but it does not limit the evidence cognizable by the court, and it does not eliminate the best interest requirement."  "Nor does the statute establish a presumption for or against joint custody; again, the paramount factor is the child's health, safety and welfare. And where the section 3044 presumption has been rebutted, there is no statutory bar against an award of joint or sole custody to a parent who was the subject of the order. This is particularly important in move-away cases." In this case the trial court had not made any express findings under section 3044 anyway, so on remand that is a subject the court is directed to pick up.

However, what the trial court did wrong is this:

The father had no burden to prove his move was "necessary". When the trial court opined that "Father's reasons for the move, that is to join a new wife and family, are not sufficient and a new wife and family in Washington is not a sufficiently necessary reason to move the residence of [Child] to Washington...." it supplanted the rule of law with an understandable discomfort with the effects the move would have on Mom's relationship with her son. The issue instead was the best interests of the child, and that decision must be considered in light of the established rule that "the paramount need for continuity and stability in custody arrangements - and the harm that may result from established patterns of care and emotional bonds with the primary caretaker [father here] - weigh heavily in favor of maintaining ongoing custody arrangements." 

Hence, Judge Schall's "order denying Father's motion reveals a misunderstanding of the determination a trial court must make in deciding a move-away motion by a custodial parent. In this case, the trial court, in effect, avoided the ultimate question whether a change in custody would be in Child's best interests were the custodial parent (Father) to move to Washington.... The question ... is not whether the parent may be permitted to move; the question is what arrangement for custody should be made [if and when the custodial parent moves]." A custodial parent is not required to show a planned relocation is necessary.

In other words, the trial court has to assume the plan for the proposed move is a serious one, and has to address the issue of custody as though the move will occur. Moreover, and this is the heart of the decision and the basis for reversal, "[t]o the extent the trial court denied Father's move-away motion with the goal of maintaining the status quo and/or coercing Father to abandon his plan to move to Washington, it erred." [Italics added].

Finally, while the effect of a move will naturally be detrimental to the child's relationship with the remaining parent, this is but one factor for the court to consider and cannot be the sole basis for denying a move. The case of Marriage of LaMusga (2004) 32 Cal.4th 1072 (hand's down the most important move-away case to know), establishes a litany of factors for trial courts to consider in their totality - which is the subject for another Blog.

This case is reversed and remanded to the trial court to evaluate all the LaMusga factors and so exercise an informed discretion before summarily denying Father's request to move.

Okay, sorry, I'm tired now - I'll be back to add some more thoughts!

Q. My ex-husband and I are involved in a bitter custody dispute. I recently realized he had not changed his Email password, and so I was able to enter his account and review his emails. I found evidence that proves he is using drugs, and I think this puts my son at grave risk. How should I best present this evidence to the Family Law Judge?

A. In my opinion you don't, and I'd advise you to stop snooping his emails no matter how important you think it is for the safety of your child. Beyond the fact that you expose yourself to a civil lawsuit for invasion of the Father's privacy, and have violated various State and Federal laws, you run a couple of other serious risks that may adversely affect the custody outcome you seek - these far outweigh whatever advantage you think the information gives you.

Most importantly as it relates to custody under California law, invading someone's email account and sharing what you find quite arguably constitutes a form of domestic violence. This was established two years ago in a case entitled Marriage of Nadkarni (2009) 173 Cal.App.4th 1483. If permanent restraining orders are issued in a domestic violence action that your ex could choose to file against you when he learned what you'd done (i.e., when you submitted the emails as exhibits filed with the court), a smothering presumption arises against you under  Family Code section 3044 "that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011." In other words, if the family court granted orders against you as a result of this conduct, you may end up assuring you lose your case and hence the ability to safeguard the very persons whom you hope to protect.

In Nadkarni the Husband gained access to the wife's email account and attached copies of her private email between she and others (including her attorney) to show that Mother had lied to Child Protective Services, and that she'd told the children to lie to him as well - and more. Husband argued he had "no choice" but to use these emails because his "kid's safety was at stake" and that he'd accessed the accounts "in sheer panic and desperation" to protect the children. Sound familiar?

Upon discovering this Wife immediately sought temporary restraining orders pursuant to Family Code section 6320.  That section permits courts to issue DV orders to stop behavior that amounts to "disturbing the peace." She alleged that she had never authorized Husband to use the account or given him the password. She also claimed that Husband was using the information to stalk her, and that his activities made her fearful because he'd beaten her badly during the marriage - and was criminally convicted of same.

While a temporary order was issued upon her application, at the hearing for permanent restraining orders her application was denied. The trial court felt that this behavior did not rise to the level of what should be restrained under the Domestic Violence Prevention Act.

Wife appealed and the trial court's interpretation of FC §6320 was reversed. The appellate court ruled "we believe that the Legislature intended that the DVPA be broadly construed in order to accomplish the purpose of the DVPA. Therefore, the plain meaning of the phrase 'disturbing the peace' in section 6320 may include, as abuse within the meaning of the DVPA, a former husband's alleged conduct in destroying the mental or emotional calm of his former wife by accessing, reading and publicly disclosing her confidential emails." The case was ordered sent back to the trial court to hold a full hearing on the wife's claims. I imagine she won that hearing.

Family law disputants are often acting in "sheer panic" but the ends do not justify the means. You risk blowing yourself up if you attempt to use the material you obtained in any way. Destroy it. I suppose we could come up with exceptions or justifications under extreme facts, where for instance a conspiracy to commit a murder or some other major crime was uncovered, that might trump the prohibition against this type of behavior. But the value of what you have here is insufficient to justify your actions, and the evidence would likely not be admitted anyway over an objection. Even if your husband does not press the advantage you potentially give him by seeking DV orders against you, most judges (and hopefully a lawyer advising you) will question your decision-making abilities once you expose what you did. A lawyer would be ill-advised to submit these emails to the court on your behalf, not merely tarnishing his own reputation but possibly exposing himself to civil liability as well.

Resist your panic, and resist your curiosity. These disputes dial people into temporary insanity and reactivity, and often the result winds up bringing about the very thing they most fear (this dad gaining primary physical custody and reducing your custodial timeshare). There are better ways to skin this cat.

• Moving and supporting papers (including the original Notice of Motion or Order to Show Cause application), must be served and filed 16 court days before the hearing date.

• However, add five days if the moving papers are not served personally but if instead they are sent by first-class regular mail from California to an address within this State (i.e., the proof of service must be dated at least 21 days before the hearing date).

• Add ten days instead if the place of mailing is outside of California or if the address to which the mail is being sent is outside the State.

• Add twenty days instead if the addressee resides, or the sender is serving from, outside the United States.

• If the recipient is outside the State, or the sender is out of state, but you serve by FAX, express mail, or another method of deliver providing for overnight delivery, add only two days.

• Opposition papers, like Responsive Declarations or Points and Authorities, must be filed with the Court and served at least nine court days prior to the hearing date.

• Reply papers, in response to opposition pleadings, must be filed and served at least five court days before the hearing.

• However, and importantly, note that  CCP §1005(c) requires that all Responsive Declarations (and other opposition paperwork) must be served by personal delivery, FAX, express mail, or other means sufficient to assure overnight service, "and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposing papers or reply papers, as applicable, are filed". This includes all attachments or exhibits to those papers.

• This last point applies equally to Reply pleadings and supporting exhibits. A Reply must be filed with the Court clerk at least five court days before hearing - and the other party must actually receive it by the next day!