Recent Posts in Burdens of Proof Category
| November 16, 2011 |
| 2nd Appellate District Severely Limits GRANDPARENT VISITATION Under Family Code Section 3102 |
| Posted By Thurman Arnold, CFLS |
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Rich v. Thatcher (2011) 200 Cal.App.4th 1176
In what reads to me to be a myopic opinion, Justice Yegan of Division Six of the Second Appellate District has declared that biological grandparents have a burden to prove, by clear and convincing evidence, that denying them visitation pursuant to
Family Code section 3102 would be detrimental to a child before they can hope to win access to their children's children, when their own child dies. in the face of a "fit" parent's objection. Attaching a burden of proof by "clear and convincing" evidence is usually the kiss of death to any litigant who has that burden.
The appellate decision appears to combine a species of "bad facts make bad law" with a reluctance to discuss the underlying facts that were determined by the Ventura trial court to such an extent that we are left guessing (but possibly not) where the grandmother went wrong, since clearly she made an extremely bad impression on both courts. Hence, my critical feeling towards the decision may be due to sensing that some important information is being withheld from "we the readers" that deserved this draconian outcome, and also from a sense that both the trial court and the appellate are being reactive to undisclosed facts, and that as a consequence a brand new rule has been established in California that will impact many grandparents who are innocent of whatever transgression Ms. Rich may have committed.
And, more important from my perspective, this decision reflects a collision between what the mental health and family sciences believe about taking a generational and cooperative approach to parenting. At this level of the case apparently nobody weighed on behalf of either grandparents specifically, or the family sciences generally - no amicus curie briefs seem to have been sought. I really hope that this decision gets appealed to the California Supreme Court so that we can begin to look at the very important role that grandparents potentially play within families. Unfortunately, grandparents don't seem to have much of an organizational voice. It seems as if the AARP ought to be interested in these issues given their constitutency.
The decision tells us that Carol Rich is the grandmother and that Rochelle Thatcher is the surviving parent ("Thatcher" is a big name in Ventura, but I don't know if there is any relation). Carol's son and Rochelle never married, but they produced a son together in December, 2006. The father died in 2010 of a drug overdose and the decision tells us cryptically that he "left two suicide notes." Grandmother and mother did not "get along", and grandmother apparently accused mother of having something to do with her son's death. "Their hostility was open and clear."
All of this suggests that grandmother had a very hard time accepting her son's death, and that she felt that the mother was in some way responsible. If so, grandmother's position may have reasonably led a trial court to conclude that she would be a destabilizing and even poisonous influence on the minor, but if that is how the justices felt it would be nice if they had said so. Instead they have spanked all grandparents with one flat judicial palm.
Grandmother did get a lengthy hearing in June, 2010, where a number of witnesses were called. At the conclusion the trial court "expressed 'great concern over [grandmother's] veracity.'" It further found that while grandmother had established some relationship with the child, she failed to establish a "deep and abiding relationship." Instead, grandmother's relationship was instead limited to interactions with the grandchild when grandmother was serving to supervised visits ordered in the parties' Paternity case. Hence, it sounds as if this grandmother's relationship with her grandson existed, but that it historically had not been substantial. The child was 4 1/2 at the time of trial.
The trial court imposed a clear and convincing standard on grandmother to "rebut the presumption that Mother is acting in the best interest of [grandchild] in denying visitation to Grandmother at this time or that denial of visitation would be detrimental to [grandchild]." Nonetheless, the trial court continued that in any event "it would not be in [grandchild's] best interest to interject court-ordered visitation with Grandmother, particularly in light of the longstanding animosity between Mother and Grandmother."
Hence, this ruling is another cautionary tale for grandparents - if you so ally yourself with you own child against the person with whom they chose to produce a child, it will hurt you later. Grandparents do too often tend to become allied and enmeshed in their children's lives, and this is a real problem in support cases where parents are paying for their children while those children refuse or fail to become independent and so try to stick the other party with a financial burden - something we will likely see an importance case on soon. But I digress.
Justice Yegan, who clearly does not brook fools,
strongly supports the lower trial courts when they make discretionary calls that are supported by the evidence. Quoting from his own earlier decision this year (see link above), he states in a footnote to this decision "[a]s
we indicated in
In re Marriage of Greenberg
(2011) 194 Cal.App.4th 1095) the trial court's comment on grandmother's veracity is tantamount to an "adverse factual finding." This is a poor platform upon which to predicate a successful appeal. (
Id.
, at p. 1099.)
That is the fact upon which this case really seems to turn. Justice Yegan continues in this decision:
"Grandmother contends that the trial court erred in applying the clear and convincing burden. We disagree with her and agree with the trial court's legal conclusion. We hold as follows: To overcome the presumption that a fit parent will act in the best interest of the grandchild, a grandparent has the burden of proof and must show, by clear and convincing evidence, that denial of visitation is not in the best interest of the grandchild, i.e., denial of visitation would be detrimental to the grandchild. The fair import of the word "detriment" is damage, harm, or loss. (See American Heritage Dict. (2d college ed. 1982) P. 388, col. 2.) If grandparent visitation is in the grandchild's 'best interest,' it is not 'detrimental.' If grandparent visitation is not in the grandchild's 'best interest,' it is 'detrimental.' [citations omitted].
Until today, no appellate court has expressly held that section 3102 requires clear and convincing evidence to overcome the presumption. 'There is some authority for the proposition that the same test which applies to a custody award to a nonparent should apply to a visitation award to a nonparent that is, that "judicially compelled visitation against the wishes of both parents" "must not be allowed unless it is clearly and convincingly shown that denial of visitation would be detrimental to the child." (
In re Marriage of Gayden
(1991) 229 Cal.App.3d 1510, 1517, 1520 ... [involving a motion for visitation by a biologically unrelated person under former Civil Code section 4601 (now
Fenn v. Sherriff
,
supra
, 109 Cal.App.4th at p. 1486; see also dictum in
In re Marriage of W.
,
supra
, 114 Cal.App.4th at p. 74 ['Where natural parents are unified in opposition, nonparental visitation can be ordered only if such visitation is in the best interest of the child
and
denial of visitation would be detrimental to the child'].)
'The degree of burden of proof applied in a particular situation is an expression of the degree of confidence society wishes to require of the resolution of a question of fact. (Citation).' [Citations omitted]. There is no question that a grandparent has an important interest in visiting with a grandchild. But the higher degree of the burden of proof that we adopt simply demonstrates that there is a preference in favor of the presumably correct choice of a fit sole surviving parent. Such choice is 'first.'
In formulating our holding, we are guided by and adopt the cogent analysis of Justice Chin in his concurring and dissenting opinion in
In re Marriage of Harris, supra,
34 Cal.4th at pp. 247-250; see also the concurring and dissenting opinion of Justice Brown at pages 251-253. To adequately protect a fit sole surviving parent's constitutional right to raise a child, a "mere preponderance" burden as to "best interest" is not sufficient. The "clear and convincing" burden, i.e. evidence "so clear as to leave no substantial doubt," promotes a parent's constitutionally protected "first" choice. The higher evidentiary burden preserves the constitutionality of section 3102 and insures against erroneous fact finding. (
Id.,
at p. 248.)
The clear and convincing burden is not insurmountable. We can certainly envision a case where a trial court could factually find and rule that grandparent visitation is appropriate over the objection of the fit sole surviving parent. This, however, is not such a case. The trial court did not credit grandmother's testimony.
Even if the trial court had erroneously applied too strict of a burden for grandmother, we
we would still affirm the order denying visitation based upon the trial court's alternative ruling. As indicated, we commend the trial court for its well-articulated order. First, it ruled that the "clear and convincing" burden was appropriate. This was a debatable issue which we now settle. But it was also prescient in articulating its alternate best interest ruling which is rooted in traditional family law principles. 'We may not reverse . . . simply because [in theory]
some
of the court's reasoning was faulty, so long as
any
of the stated reasons are sufficient to justify the order. [Citation.]' (
Kaldenbach v. Mutual of Omaha Life Ins. Co.
(2009) 178 Cal.App.4th 830, 844.)"
Note to reader - I've added some emphasis to this.
So, we now have a rule that is clearly intended to honor the constitutional issues addressed to some extent in the U.S. Supreme Court's Troxel decision. But the decision omits to discuss any of the legislative history of Family Code section 3102 as to whether the burden of proof that is associated with it is nearly as hard as what the decision makes it become. While "clear and convincing evidence" is not an "insurmountable burden," practically speaking any lawyer will tell you it almost is. Morever, while the decision admits that grandparents have important interests in visiting with grandchildren, it totally ignores the rights of children to know their families of origin. There is no mention that any lawyer was ever appointed for the minor in this case.
This decision should also be evaluated in light of a Fourth Appellate District decision issued less than a month ago. In Hoag v. Diedjomajor the Riverside based appellate district upheld a trial court order for visitation after a grandparent's child died. The burden of proof applied by the Court was not discussed, but was implicitly by a "preponderance of the evidence."
The outcome was the opposite than here, but in many ways it is entirely consistent with Justice Yegan's decision - and here is what is interesting for me: If a parent refuses visitation, even if they don't get along, to spite the grandparent, they lose. But if the grandparent seeks visitation after spiting the non-biological surviving parent, they lose.
And, I wonder, how can a "fit" parent (by definition) deny any access at all between their child and that child's grandparents, especially when the intergenerational parent is dead, except under the most outrageous of circumstances? Yet, having said that, I must confess that if a grandparent does behave outrageously, then their rights should be limited or nonexistent. Oy vey, possibly the record that we will never see discloses that such was the case here - but we must take it on faith, apparently, that it was. I don't see how we need to impose a burden of proof by clear and convincing evidence to ensure that bad grandparents are fenced in - I mean "fenced out".
Another question bothers me - the decision points out that there were nine other witnesses who testified at the trial beyond the grandmother in this case. Did these include the maternal grandparents, who possibly were more favorably received? So often these types of litigation wars can only be funded by older people who have accumulated some wealth. Often these family battles include or are really between parents' parents. I notice that the mother in this case appears to have had premiere local counsel, and that must not have been cheap. The paternal grandmother will foot some of their bill in this case since costs were assessed against her.
But then, of course, other losers as a result of this decision are the grandchildren of grandparents who can behave themselves who may be affected by this new burden of proof. IMHO. But you may disagree - please feel free to comment if you do! |
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| August 15, 2011 |
| IRMO MARGULIS - Managing Spouse Has BURDEN OF PROOF To Explain MISSING ASSETS |
| Posted By Thurman W. Arnold, C.F.L.S. |
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Marriage of Margulis (8/11/2011) 198 Cal.App.4th 277
Part One
I am always pleased to report cutting edge rulings by our appellate courts, and this is one of the most important decisions in recent years affecting who has the burden of proof to explain what happens to assets that disappear after marriage partners separate, and what the consequences are for managing "in-spouses" who cannot explain what happened to liquid (or other assets) that existed at separation but seem to have evaporated in the meantime. While upon reflection it is hard to imagine how this decision could be news because it makes such perfect sense, the Fourth Appellate District's pronouncements (by the Honorable J. Aronson) are indeed a new extension of existing law - which is why the trial court in this case was reversed.
Special kudos to Attorneys Stephen Temko and Dawn Gray on behalf of the Association of Certified Law Specialists (an organization serving the public interest that I am proud to be a member of) for weighing in with amicus curiae briefs that probably helped to inform the appellate justices in positive ways.
Because this case is important I am going to help it be digested in two gulps - this is Part I.
The root holding of IRMO Margulis is this: Once a nonmanaging spouse makes a prima facie showing concerning the existence and value of community assets in the control of the other spouse postseparation, the burden of proof shifts to the managing spouse to rebut the showing or prove the proper disposition or lesser value of these assets. It is now clear that managing spouses have the burden of proof to account for missing assets that they controlled.
Family Code section 1100 states that "either spouse has the [right of] management and control of the community personal property, ..., as the spouse has of the separate estate of the spouse."
But when parties separate the more empowered partner often grabs or already manages all the marbles, and then enjoys the advantage of continuing to carry those marbles around and even spending them down until the community property pot is ultimately divided. Without accountability this frequently led to abuses and misappropriations that - in the absence of this new rule - favored that party and facilitates their practical ability to defraud the community property estate, notwithstanding a legal duty per Family Code section 721(b) to account for what went where. Until now. The
Margulis rule is necessary to protect the rights of an "out-spouse" as a matter of basic fiduciary protections.
The facts of the case as set forth in the appellate decision are these (and are reminiscent of the facts of the Davenport decision): Alan and Elaine separated after 33 years of marriage in August, 1996. Alan moved out of the parties' Irvine home and moved to Chicago to start a new job. Elaine remained in the family residence. They owned a home in Palm Desert, California.The marriage yielded two children who are now adults.
During the marriage Alan was the sole working spouse and exercised "complete control" of the couple's finances - sound familiar? This included retirement, bank, and investment account personal property assets. Although Alan moved out in 1996, Elaine did not file for divorce for another six years - in 2002. Five more years passed before Alan even filed a response in those proceedings. Throughout this period Alan paid Elaine just enough, evidently, for her to be satisfied with the financial status quo so that she undertook no steps to move the divorce towards a conclusion. I can only speculate what psychological and emotional dynamics were at play in these people's lives, but infer that Elaine trusted Alan enough that she did not perceive that she needed to take vigorous steps to protect herself. Which gave him free reign for a long, long time.
Once the case did begin to move forward, as often happens when there is a significant power imbalance in relationship, it began to move quickly and that pace certainly further advantaged the husband. Commonly it is the in-spouse who is rushing the case to trial while the out-spouse plays catch-up and the parties, or the in-spouse, play discovery games and hide and seek with assets, disclosures, and backup. Bank accounts are easily susceptible to this type of abuse because they are document intensive, and expensive to evaluate. In and out transactions (deposits in, transfers out) must each be traced in order for forensic experts and the court to know how to characterize and characterize transactions and the flow of cash. Here Alan filed his Response to Elaine's 2002 Petition on February 21, 2007, and the parties found themselves in a pre-trial Mandatory Settlement Conference only six months later. This means that Elaine's team had very little time to prepare since Alan knew where the marbles were but elected not to share their identity and location.
There was a single "smoking gun" in the case which consisted of what became at trial "Exhibit 18." This was a two-page document that was entitled "confidential personal financial statement" for "Alan/Elaine Margulis," dated February 1, 1999. It reflected total assets of $1,305,500. The liquid (i.e., cash) portion amounted to more than half of that number.
At trial Elaine testified that, as the nonmanaging spouse, she had no personal knowledge or records of the value of the accounts at any time. This was the sole extent of her evidence at trial about the status of the assets near the date of separation, and essentially Alan's attorneys argued that this proved nothing. Elaine's attorney responded insightfully that the effect of this document was to shift the burden of proof to Alan to explain and show that he had properly disposed of those assets, or that the stock holdings lost their value as a result of market conditions - as opposed to them having been withdrawn or mismanaged by him or for his sole benefit. But the trial judge disagreed, which set up this reversal in favor of Elaine.
The trial court explained "I don't believe it supports, standing alone [that] your assets listed did, in fact, exist." Wife had no other evidence to prove that they did - hence, without the rule established by Justice Aronson in this case, she would be out of luck. Her proof would have failed on the contested issues, and it did fail at the trial court level. Before this decision the trial court's perspective was a bit shallow but not surprising. It takes bold judges with considerable family law experience to read the sub-text.
Who has the burden of proof on a topic is often key to which party wins or loses on a given issue. This is why Marulis is important to control of asset cases.
Shifting the Burden of Proof
There are two common principles linked to the concept of the "burden of proof." One is the burden of persuasion and the other is the burden of producing evidence. Often if a party cannot produce evidence on a subject that the law imposes a burden upon them to produce in order to prevail, they lose. Irmo Margulis has implications beyond family law.
The Margulis decision observes: "the trial court concluded that Elaine, the nonmanaging spouse who lacked both personal knowledge and records concerning the assets listed on exhibit 18, failed to meet the difficult burden of proving these now missing assets had existed....
The trial court's failure to place the burden of the duty on Alan relieved him of the duty to account for his postseparation management of these assets. Thus, Alan did not have to prove the
amounts
that had been in these accounts or that he had properly disposed of those sums. This lack of accountability poses a risk of abuse and runs afoul of the statutory scheme imposing broad fiduciary duties of disclosure and accounting on a managing spouse." [Emphasis added].
It continued: "Given that 'bedrock concerns' of 'policy and fairness' drive the analysis [citation omitted]
, it is not surprising that a common trigger for burden-shifting is 'when the parties have unequal access to evidence necessary to prove a disputed issue. 'Where the evidence necessary to establish a fact essential to a claim lies peculiarly within the knowledge and competence of one of the parties, that party has the burden of going forward with the evidence on the issue although it is not the party asserting the claim.'....
Concerns over 'unequal access to evidence' [citations omitted]
are particularly pressing in the context of a marital dissolution where financial records can be crucial to ensuring the equal division of property required by Family Code section 2550.... Undoubtedly, in marriages and separations like the Margulis's where one spouse exercised exclusive control over community property, the parties will have vastly
unequal
access to evidence concerning the disposition of that property. When this occurs, fairness requires shifting to the managing spouse the burden of proof on missing assets. Moreover, ..., the statutory fiduciary duties of disclosure and accounting owed between spouses further justify that result."
The Appellate Court goes on to explain why this result is fair in light of the fiduciary obligations between spouses that I have written about so much over the past few years. I will separately blog that portion of the decision.
But as I have been trumpeting now for many months, the appellate courts are working overtime to save the existing California scheme of family law to ensure transparency - it is my opinion long overdue but much appreciated!
For those in-spouses who do act in good faith after separation and the pendency of the marital proceedings, Margulis is a cautionary tale - managing spouses had better keep records of transactions affecting the community property estate and make all required disclosures or find themselves assuming the risk of loss or diminution of the value of those assets.
Please note that the appellate Court's initial decision of August 11, 2011, was modified on August 26 and September 9, 2011. The citation to the modified opinion is Marriage of Prentis-Margulis v. Margulis (2011) 198 Cal.App.4th 1252. I have yet compare the differences in the two decisions.
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| August 02, 2009 |
| Joint legal and sole physical custody Mom needs help. |
| Posted By Thurman Arnold |
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I am a mom in San Diego County. There are court orders out of El Cajon for joint legal custody and sole physical to me. The old orders said I could move anywhere within San Diego County. I just changed our son's school to north county San Diego. I want to remarry, and have been living with my fiance for 4 years. I believe the
schools are better here. Now our son's father is trying to force me to keep our son in the old school south of here, or to take custody. He says the school our son was in is better. I would have to drive 70 miles for school drop off and pickup.
I have no money for attorney fees because my last lawyer had only a year's experience, and she upset the judge and now I am out $10,000. We have a hearing in 3 days. Please help.
Mellissa
Mellisa:
I am not sure whether you filed an Income and Expense Declaration before now but you might be prepared to submit one to the Court on the issue of attorney fees at this upcoming hearing:
Attorney Fees Question/Assuming There Are Any Further Hearings
While attorneys fees should be your second argument, assuming that any further hearings are set or you get the sense things are not going well, you do need to ask for an Order for the $5,000 in attorney fees - even if the issue was not raised in your moving papers, you are still entitled to make this request pursuant to
Family Code [FC] section 2031(2)(b)(1) for the first time on Thursday. That section states 'an order for fees may be made without notice in open court ... at the time of the hearing.' Court has 15 days to rule. If it states in will rule later, ask that both parties be ordered to submit
FL-150 I and E statements
within 7 days.
You are requesting attorney's fees because the issues involved are some of the most complex in this area of the law (parent relocation), and you are entitled to be on a parity with Mr. Tr xxx, who has been able to retain competent counsel.
Specifically, tell the Court your request is also made under authority of Alan T.S., Jr. (4/2/09) 172 Cal.App.4
th 238 and
In re Marriage of Keech (1999) 75 Cal.App.4
th 860. Tell the Court that you are in pro per but do not want to be, but that obligation of supporting the child from this marriage plus the financial burden of your other handicapped child, makes it impossible for you to obtain legal representation without an order that Mr. Txxxx pay these fees.
Move-Away Situation
1)
Establish that the final, current order, is for joint legal and sole physical custody to you. Mr. Txxxx rights are for visitation only, but not custody, absent a modification of the current orders upon a showing by him of a material change of circumstances. Your move and the child's new school is not presumptively, without more, a sufficient change of circumstances to warrant a change of custody even assuming he asked for it (I don't know if he has).
2)
As the parent entitled to the day to day supervisory control of the child per FC section 3007 (defines sole custody), you had a presumptive right to relocate. This is the same right codified in
FC section 7501. You have custody; dad has visitation rights. (Btw, his visitation rights are not being negatively impacted by the move, by his own admission, since his objection only involves relative school ratings).
3)
As to the joint legal custody label, this only grants each of you the rights under FC section 3003 (decisions regarding health, education and welfare) during your respective custody and visitation times. FC section 3083. It is does not obligate you and he to agree on schooling absent a court order saying you had to first, per 3083, and it must be specific and mention "schooling" (I assume this is not the case).
4) Even though you were not required to do it, you gave dad notice per
FC section 3024 that you were moving north and changing the child's schooling. F's atty intimidated you into filing a motion for permission to make the move, when they probably were the one's obligated to file a motion to restrain the change, and so you have acted in good faith. This is particularly true given the court order from (the ealier date) stating you can relocate anywhere within San Diego County.
5)
It is very important if their responsive declaration did not check the change of custody box, and if their paperwork only asks to restrict the change in schools - you need to be sure you are right about this before making the argument - BUT if they are not seeking a modification of custody, then you have the right to move [7501] and change schools [3003/3083] and there should be no need for any further hearings and your application must be granted.
6)
Next, ONLY IF THEY'HE REQUESTED A CHANGE OF CUSTODY, then the next analysis is: That this is not a de facto joint parenting agreement. This not a Burgess footnote 12 case (which requires a " de novo" best interests of the child hearing only where there is true parenting agreement). Here the timeshare numbers become important - you want him as low as reasonably possible without sounding incredible. This is a straight Burgess situation, and therefore you have the presumptive right to move and you do not need to show that the your move was "necessary" or even in good faith, except with the added benefit to you that Burgess involved temporary orders and so the court had to do a best interest of the child analysis, while your case involves "permanent" orders and so that is not a ground for an evidentiary hearing (best interests was previously decided in your favor and the question will be not be reviewed again absent Dad showing a change of circumstances).
7) Changing schools is not an adequate CoC as recently held by the California Supreme Court in Brown and Yana (2006) 37 Cal..4th 947. Here, like you, a parent with sole physical custody sought to move a much greater distance from the dad - Las Vegas. Dad's objection was that the schools in LV were inferior. He wanted an evidentiary hearing before the move would be allowed, and he sought a change of custody to himself if Mom moved anyway. The trial court correctly refused to allow an evidentiary hearing because the Father had failed to allege sufficient facts showing a detriment to the child by simply claiming the relative merits of schools. Courts won't step into that qualitative battle. Instead, F needs to show that you are attempting to frustrate contact, which clearly is not the case, or some other "detriment" in his responsive declaration. His failure to do so means he is not entitled to an evidentiary hearing.
8)
Since he is not entitled to an evidentiary hearing, even though a mediation is appropriate in the next month, it would be improper for this court to issue any orders that restrain your son's ability to start school on 8/20/09 as planned.
9)
Father has failed to meet his burden.You need attorney fees to retain competent counsel for any further hearings.
10) Finally, under FC section 3044 there is a rebuttable presumption that dad is not a fit person to be a joint custodial parent because of the DV orders.
Best of luck on this. If you get a court order for attorney fees, hire someone!
Thurman Arnold, CFLS
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