Recent Posts in Death and Divorce Category
| October 31, 2011 |
| GRANDPARENT RIGHTS: Recent RIVERSIDE Case Orders VISITATION To GP After DEATH OF PARENT |
| Posted By Thurman Arnold, CFLS |
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Hoag v. Diedjomahor (October 17, 2011), E050935
The Facts
The Fourth Appellate Division released a published opinion on October 17, 2011 in the case of
Hoag v. Diedjomahor, a case which was decided by recently retired Commissioner Michael McCoy in Indio, California, involving grandparent visitation rights upon the death of a parent per
Family Code section 3102. Commissioner McCoy's ruling in favor of the grandmother was upheld on appeal. Interestingly, the grandmother did not participate in the appellate level proceedings but nonetheless succeeded. Overturning a well reasoned trial court decision, where an abuse of discretion must first be shown, is always a difficult proposition.
Melville Diedjomahor (the father) and Kristen Hoag (the mother) were married in 2005. They lived with Kristen's mother, Shannon Hoag (the grandmother) in an apartment in La Habra. Kristen gave birth to their first daughter in 2006. Thereafter the parties separated. Melville moved to Desert Hot Springs, California, while Kristen and the minor remained with the maternal grandmother. Then the parties reconciled, and the family - including Shannon Hoag - moved into a residence together in DHS. In 2008 a second daughter was born.
Kristen filed for divorce in Indio in February, 2009. A month later she died unexpectedly as a result of previously undiagnosed epilepsy. Immediately following the death the children remained with the grandmother, and the father would come visit every few days.
Several months later the grandmother told the father she intended to file a guardianship proceeding. In reaction thereto, Melville demanded that she turn the children over to him. The proceeding was filed, alleging that the father was unfit because of injuries and also because he was in the country illegally and subject to deportation. Communications between the two rapidly deteriorated such that - according to grandma, he refused to give her any further visitation except that which was court-ordered; the father denied imposing this limitation to the trial court. In any event the GM was denied access to the children for some weeks after she filed her guardianship petition, until Commissioner McCoy entered visitation orders some three weeks later.
To complicate matters, grandmother was living together with Kristen's uncle, where the children and Kristen had also stayed for a time before her death, and - as we so regularly see if high conflict family law cases - father alleged that the uncle had improperly touched his niece, Kristen, years before when she was a minor. In 1993 grandmother's children had been removed from her custody because she had been using drugs. For these reasons grandmother should not have extended visitations, he argued.
Nonetheless, grandmother received visitation with the minors pending a trial. The guardianship proceedings were dismissed and continued within the family law action that Kristen had initiated. This visitation gave the grandmother three hours every Wednesday and 48 hours every other weekend, and she was allowed a daily phone call. This became her proposal for the final visitation order. It was based upon the mediator's recommendations.
Melville claimed at trial that he would permit grandmother to visit, but objected to any orders issuing for same and instead insisted it should be left to his discretion for day to day and moment to moment. He contended that overnights were not safe because the children might be exposed to the uncle (by this time the grandmother had moved into an apartment by herself, in the same complex as dad), that he wanted to study the kids on Wednesday, and he objected to daily calls because they interrupted what he was doing. He explained that once grandmother had filed court proceedings she had breached any trust that had previously existed between them. Hence, his final non-court order proposal was eight hours every other Saturday and one week during the summer with no sleep overs, and eight hours on grandmother's birthday.
Ultimately Commissioner McCoy found that while the father was in fact a fit parent, but that he had opposed grandmother's requests for what was in fact a reasonable visitation schedule. The Court specifically found that the father's testimony that he would allow non-court ordered visitation to occur to not be credible, and the trial court also dismissed the allegations regarding the uncle and the grandmother's past conduct (although noting that Commissioner McCoy had prohibited such contact in any event). It found that visitation was in the children's best interest, particularly so given the the years that grandmother had acted as a third parent for the children and the parties before the divorce was filed. Essentially, the trial Court ruled that a parent does not have unfettered discretion to impose visitation conditions at their whim where grandparents have played such an important historic role for children.
The Law Concerning Grandparent Visitation
This decision does an excellent job in reviewing and cleaning up California decisions about grandparent visitation in the wake of
Troxel v. Granville (2000) 530 U.S. 57, decided by the United States Supreme Court almost twelve years ago. Like
Troxel,
this case involves a grandparent, whose adult child has died, seeking visitation with that child's minor children over the objection of their surviving parent. As noted by Justice Richli, who wrote the opinion for our local Riverside County based appellate division, Troxel commands the courts to presume that the surviving parent's objection to grandparent visitation is in the best interest of the children. "However, this does not mean that the surviving parent is free to use the denial of visitation as Big Bertha in his or her personal war with the grandparent." Here, the trial court found that the surviving parent's claimed reasons for objecting to visitation were not reasonable and not credible; in essence, as he practically admitted on the stand, he objected to visitation mainly
to spite the grandparent. Moreover, he admitted that grandparent visitation would be in the best interest of the children. Thus, the presumption that he was acting in the best interest of his children was overcome, and the trial court constitutionally could and did grant the grandparent's visitation petition.
The trial court understood the law to be that it could constitutionally apply section 3102, including its best-interest test, provided the father was either (1) unfit, or (2) "opposed to occasional visitation." It expressly found that he was a fit parent. It concluded that "the issue really turns on whether dad is opposed to occasional visitation. If he is, then the court then addresses what visitation, if any, is in the children's best interest." It found that the father was "opposed [to] any . . . reasonable visitation involving the children and grandma." Thus, it proceeded to apply a standard best-interest test.
The father challenged this reasoning by arguing that the trial court erred by finding that he was opposed to meaningful visitation. Second, even assuming that he was opposed to meaningful visitation, he was still entitled to a presumption that his decision was in the best interest of the children.
The justices in this case stated:
"In Troxel, the surviving parent's willingness to allow visitation was just one of a number of factors that the Supreme Court took into account. Thus, the significance of this single factor, standing alone, is not at all clear. We have no way of knowing what the outcome would have been if the surviving parent had
not been willing to offer meaningful visitation.
On one hand, the Troxel plurality cited, with approval, various state statutes allowing courts to award visitation to a nonparent when a parent has denied visitation; it evidently viewed these as constitutional. (
Troxel,
supra, 530 U.S. at pp. 71-72 [plur. opn.].) On the other hand, it adopted a broad 'presumption that fit parents act in the best interests of their children.' (
Id. at p. 68.) It would seem that this should apply not only to a decision to limit visitation, but also to a decision to deny visitation entirely.
In fact, Troxel's discussion of willingness to allow visitation puts the parent in a 'damned if you do, damned if you don't' position. If the parent voluntarily allows some visitation, that could be viewed as a concession that visitation is in the best interest of the child. Certainly it is a decision regarding the child's best interest, to which the court must {Slip Opn. Page 15} accord 'special weight.' If, however, the parent refuses to allow
any visitation voluntarily, that, too, weighs in
favor of court-ordered visitation. What is a parent who genuinely believes that visitation would be detrimental supposed to do?
Because this issue is fraught with difficulty, we choose to assume - solely for the sake of argument - that the trial court erred by ruling that it was free to apply a best-interest test solely because the father was not willing to offer meaningful visitation voluntarily. This would mean that it was still required to presume that the father's visitation determination was in the best interest of the children and to accord special weight to that determination.
The trial court's other findings, however, show that, even if it had applied this standard, it would still have allowed visitation. Most crucially, it found that the father's claimed reasons for objecting to visitation were not reasonable and not credible. This left, as his real reason, a desire to retaliate against the grandmother for her attempt to take the children away from him. Indeed, he testified that he was contesting visitation because she had breached his trust by trying to take the children away from him, and she had been 'disrespectful' to him. We hasten to add that this is a completely understandable reaction. Nevertheless, it is not based on the best interest of the children. To the contrary,
it punishes the children for the sins of the grandmother. [Emphasis added].
Moreover, in closing argument, the father's counsel conceded that visitation with the grandmother would be in the best interest of the children. He merely argued that
court-ordered visitation would be detrimental. Thus, the trial court did not simply disagree with the father concerning the best interest of his children. Moreover, it did not fail to give sufficient weight to his determination of their best interest. Rather, based on its findings (and his concession), the presumption that his visitation determinations were in the best interest of the children was thoroughly overcome.
Evidently the father's counsel was trying to achieve the same outcome as in Kyle O. The father there, too, admitted that visitation with the grandparents was in his daughter's best interest and claimed that he would allow visitation voluntarily. He testified, however, that
court-ordered visitation was detrimental because it increased the hostility between him and the grandparents. (
Kyle O. v. Donald R.,
supra, 85 Cal.App.4th at pp. 858-859, 863-864.) He also introduced evidence that court-ordered visitation had interfered with the child's opportunities to spend time with him and her paternal relatives and that it conflicted with her other activities. (
Id. at pp. 857-858.) The appellate court concluded that "his preference for a less structured and more normal and spontaneous manner of visitation must be given deference." (
Id. at p. 863.)
Kyle O. is distinguishable, however, because here, the father (and his counsel) never really explained
why he objected to court-ordered visitation, even though he was supposedly willing to allow visitation voluntarily. When asked, he simply raised objections to the existing temporary visitation
schedule. For example, he claimed that the Wednesday evening visit prevented him from "study[ing]" with the children.
This was not an objection to court-ordered visitation.
In this appeal, the father claims that it was reasonable for him to be opposed to court-ordered visitation, as opposed to voluntary visitation, because the grandmother had 'a pattern of hostility' toward him. He argues that, unlike voluntary visitation, court-ordered visitation would give her a stick to beat him with - any time he violated an order, she would undoubtedly seek sanctions against him.
The problem with this argument is that the father himself never testified, at trial, that this was
why he opposed court-ordered visitation. Thus, the trial court did not have to accept this theory.
The father also argues that the trial court erred by dismissing his concerns about whether the children would be safe with the grandmother. The trial court, however, specifically found that these concerns were neither reasonable nor credible. Substantial evidence supports this finding. The supposed molestation was remote; it had occurred when the uncle was about 12 and mother was about 5. It was described as 'improper[] touch[ing];' the grandmother characterized it as 'playing doctor.' The children had stayed at the uncle's house for over a month without being molested. In any event, by the time of trial, the grandmother was no longer living with the uncle. The trial court could and did order that the children not be left alone with him.
The grandmother's drug use was similarly remote. Her loss of custody, although due, in part, to her use of drugs, had been only temporary. It did not appear that she had ever used drugs again. Last, but not least, again, the father admitted that visitation was in the best interest of the children and claimed that he was willing to allow visitation voluntarily.
Next, the father argues that the trial court erroneously placed the burden on him to prove that his objections to visitation were in the best interest of the children. Not so. He does not cite any portion of the record to support his claim, and we have found none.
Finally, the father argues that even if the trial court did not err by allowing some visitation, it erred by adopting a more extensive visitation schedule than he was willing to offer. He does not support this argument, however, with any analysis or citation of authority. Accordingly, we deem it forfeited....
We do not mean to suggest that, if not forfeited, it would have merit. The trial court found that the father's objections to visitation did not arise out of a genuine concern for the best interest of the children. Thus, the constitutionally established presumption that he was acting in the best interest of the children was overcome. This not only allowed but affirmatively required the trial court to determine what visitation schedule was in the best interest of the children.
* * *
The father argues that ... the trial court could not order visitation unless and until he had been given an opportunity to negotiate visitation voluntarily.
He had such an opportunity, however, in the course of the guardianship, as well as in this action. He even participated in mediation (which regrettably produced no agreement). According to the father, however, a grandparent must ask the surviving parent for a voluntary visitation arrangement before the grandparent can even file a visitation petition with the court. Thus, in his view, the fact that he had an opportunity to negotiate a voluntary visitation arrangement after this proceeding had already been filed is irrelevant. We find no authority for this in Troxel or
Punsly. Indeed,
Punsly is, if anything, to the contrary. It understood
Troxel to mean that "the parent must be given an opportunity to voluntarily negotiate a visitation plan," but it added that it was "irrelevant" when or why the parent did so.
(Punsly v. Ho,
supra, 87 Cal.App.4th at p. 1108.) Moreover, it held that, in the case before it, this requirement had been satisfied by the parent's agreement 'to voluntarily arrange visitation . . .
both before and after the [
grandparents]
petitioned the court for visitation.' (
Ibid., italics added.)
The father argues that it would be good public policy to make a request for voluntary visitation a precondition to filing a visitation petition. Even if so, this is an argument that must be made, if at all, to the Legislature. Section 3102 contains no such requirement, and the federal Constitution, as construed in Troxel, does not impose one."
Comments
Commissioner McCoy did an outstanding job in making a thorough and well-reasoned decision based upon the evidence. To resist visitation by a grandparent who has a close and substantial relationship with grandchildren, there needs to be real evidence in the record that the children's best interests in continuing, stable relationships with these third party nonparents, are not being ignored simply out of spite.
This case is a must read for all grandparents, or custodial parents, faced with a grandparent or other request for visitation rights by a non-parent. I will upload the opinion itself in a few weeks. It gives rich fodder for how to structure arguments on both sides in these often acrimonious, but always unfortunate, disputes.
However, as it turns out, this decision is not the final answer on the matter. I will discuss the more recent case of Rich v. Thatcher, out of Ventura County, shortly. But, this is not the Ventura "Thatchers", is it?
Please note that this decision is based upon Family Code section 3102, which only applies where one parent has died. The other grandparent visitation statutes are Family Code section 3103 and
FC section 3104. I would suspect, however, that this case will nonetheless generalize, to an extent that remains to be seen, to grandparent visitation where both parents are still living.
Thurman Arnold, III, CFLS
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| October 11, 2010 |
| Our Disso is Final But We Never Changed the JOINT TENANCY DEEDS. My Ex Just DIED. |
| Posted By Thurman Arnold |
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Q. I just found out that my ex-partner passed away last week. Our partnership disso became final six months ago. We had agreed to hold some commercial property jointly until the real estate market improved, and then to sell it and divide what we netted. They were held in "joint tenancy" and that was never changed. Does this mean I now inherit his share?
A. Probably not, but read on. I talk about this in my last blog about title to property held as "Community Property" and describe "rights of survivorship". But this raises a point that might be useful for you or someone out there - it is not all that uncommon, especially these days, that people agree to continue to jointly own real estate hoping the market is better down the road when they will finally sell. Sometimes they'd actually prefer that their former domestic partner or spouse inherit their share if they die first, before the property is sold especially when there are no children or when adult children have been disinherited.
However, it is not enough that a Judgment, Stipulated Judgment, or Settlement or Termination Agreement say "we will continue to hold the property jointly after the divorce is final and will agree to sell it later (or maybe after a specific time period)" to preserve a joint tenancy interest and its chief attribute - a right of survivorship. This is because without more once the domestic partner (or marital) status is terminated, all joint tenancies that existed prior to that point become tenancies in common as a matter of law. California Probate Code section 5601. Tenancies in common do not contain any survivorship rights.
There is a big "however", however. Section 5601(b) has two exceptions that might help you: (1) Where the joint tenancy is not subject to severence at the time of death, possibly where a written agreement specifically says so (as in a settlement agreement filed with the Court or (2) there is "clear and convincing" evidence that the person who died intended the preserve the joint tenancy in favor of the former partner or spouse.
Hence, where anybody intends to preserve joint tenancy status they should specifically say so in a written document, preferably as part of the Judgment. I always reference the Probate Code section itself. Or, there may be something else that is sufficient to cause the Probate Court to find no severence was intended. My bet is that if there were no other heirs at law for the deceased party, the court would be more easily convinced to find in your favor then if there are surviving children or other family left.
Notice that under the statute the outcome would be different if the Judgment was a decree of legal separation instead.
T.W. Arnold
http://www.DesertFamilyMediationServices.com
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| October 11, 2010 |
| What does "COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP" Mean? |
| Posted By Thurman Arnold |
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Q. I am considering a divorce. I have found the deed to our home, and I see that the grant deed by which we took title is held like this "to Jim ... and Mary ..., husband and wife, as Community Property, with Right of Survivorship." What does this mean for me?
A. There are several very important consequences that flow from this language. The way is which title is held (or "form of title") is also called "vesting." Everything I say here applies to title for any form of property - bank or brokerage accounts, for instance, as well as any kind of real estate and the types of personal property for which we use title documents.
First, a "right of survivorship" means that if one party dies - but only before a final judgment of termination of the marriage of domestic partnership, or where a termination of marital status or partnership status occurs before the rest of the case is resolved in judgment form, the party that survives them inherits 100% of the dying party's share of the community property. It does not matter that there exist a Will or Estate document that purports to create a different transfer upon death. Where a right of survivorship exists there is no need to probate an estate in order to obtain full title - all that is required is that a Affidavit of Death of Joint Tenant be recorded with the County Recorder for the County where the real property is located. A Death Certificate must be attached to it. The transfer is then complete.
For other forms of property, as with jointly held bank accounts, the same results occur. However instead of recording an Affidavit of Death with the County Recorder's Office, a Certified Copy of the Death Certificate is simply provided to the banking institution. As a practical matter vehicle titles are different in the sense (a) they are filed with any DMV office in California and (b) the title language rarely references "community property" or 'rights of survivorship', and instead titles the property to Jim "and" "or" Mary. I will have to discuss the rules relating to inheritances and surviving widows and widowers in a different blog.
Second, if a party dies after a Final Judgment dissolving a marriage or domestic partnership, or after a "status termination" before final judgment, but title to the property has never been changed for whatever reason then there is no automatic right of survivorship - in legal effect, the survivorship rights were terminated (severed) upon the by operation of law as a consequence of the Status Termination.
Likewise, if a party to a divorce proceeding dies before the termination of status then the survivorship right controls (see below). Since people don't expect this, something lawyers call a "Blair warning" based upon a particular appellate decision is set forth in the
Family Law Summons Form FL-110 that no one ever seems to actually read (hopefully your lawyer told you about it).
This is one reason by marital bifurcations can have unforseen consequences and should be taken seriously when another spouse in the course of a divorce seeks to terminate status before the entire case is resolved by Final Judgment.
Third, in California when property is vested in both parties as "CP with right of survivorship" it is the equivalent of a "joint tenancy." All the same rules apply. Thus, what we are speaking to applies whether the "CP with right of survivorship" language was used for more common "to Jim and Mary as Joint Tenants is used."
Fourth, there does not need to be any reference to whether the parties are "husband and wife" for these rules to apply. Non-married people can be joint tenants as to any form of real (land) or personal property and the death of one vests the remaining title in the other - however, since there will be no termination of marital status since there is no marriage (assuming no domestic partnership either), there is only one way to destroy the right of survivorship: By transferring at least one party's interest as a "joint tenant" to themselves as a "tenant in common". The transfer of tenant in common interests after death follow the rules of testacy (a will exists and directs who gets what) and intestacy (no will exists, and specific legal rules declare who gets one depending upon their familial relationship to the decedent.
Fifth, many lawyers and savvy unrepresented parties will destroy the right of survivorship before the termination of marital status through the method outlined directly above. It only requires one party to accomplish this and it does not require the other party's consent. This has risks, however, since if you destroy a joint tenancy interest prematurely and other spouse dies then you will not inherit their interest but you will of course inherit you own 50%. If you are a child of a parent married to a nonparent or estranged parent and wish to protect your inheritance rights for an ailing father or mother - and they want you to inherit - you should consult a lawyer to assist in destroying the right of survivorship in a legally enforceable way. Note that a termination of this survivorship right violates the automatic temporary restraining orders that arise at the moment that every California dissolution or legal separation proceeding is filed, and that special rules exist for terminating joint tenancies which - if ignored - may not only render the attempt transfer void but further subject you to contempt or other penalties including attorney fees for trying to sever it improperly. Family Code section 2040(b)(c).
Sixth, and most important for the average divorce and in answer to your question, important legal presumptions arise from the Form of Title that have a huge impact on whether property is considered as community or separate. Way simply put, title held as you describe will almost certainly be declared community property for purposes of divorce and each spouse will be entitled to an equal one-half equity interest. However, that outcome does not require the "community property" language to be present in order to apply - any form of title acquired in joint names (tenancies in common, joint tenancies, tenancies by the entirety) triggers the presumption. The relevant Family Code section here is 2581.
Seventh and last for this Blog article, title presumptions are a kind of "super presumption" under the law in the sense that generally in order to rebut (disprove) them, the evidence that you submit must be "clear and convincing." A garden variety presumption in comparison is the rule that property acquired during marriage in whatever form (including title) is presumed to belong to the community. Family Code section 760.
Although FC section 760 doesn't use the word "presumption" that is what it means, and this presumption is the ordinary "by a preponderance of the evidence" presumption - meaning 51% likely or better. Clearing and convincing can be considered as 75% or better - although that is a simplification. Take a look at FC section 2581(a) and (b).
Unfortunately, that is not the end of the analysis because even where property is titled jointly, a party who can trace separate property contributions to its acquisition or certain improvements to it can recover those (Family Code section 2640) if they can follow the money through written records in a legally sufficient way in the event of a divorce. In the event of a death, these reimbursements are extinguished.
I discuss "tracings" on this Blog.
Different but similar rules apply to Living Trusts which are beyond the subject of today's Blog. I can see this is a good topic and "I'll be back." |
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| April 25, 2010 |
| What SOCIAL SECURITY BENEFITS are paid upon the DEATH of a SPOUSE after DIVORCE |
| Posted By Thurman Arnold |
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Q. What widow's benefits exist from Social Security if my former spouse dies?
A. In order to qualify for derivative widow (widower) Social Security benefits, a couple must have been married for at least 10 years and the contributing spouse must have been fully insured through Social Security at the time of his death (the contributor must have paid into the system for at least 40 quarters).
In order to qualify for widow benefits, a surviving divorced spouse must be at least 60 years of age (or at least 50 years if disabled), and not have remarried again before age 60.
To prevent a loss of survivor benefits a former spouse who is nearing age 60 and considering remarriage should delay the wedding until after their 60th birthday. However, remarriage doesn't preclude eligibility for disabled surviving spouses or disabled divorcing spouses who remarry between ages 50 and 59.
Unlike what is received by way of derivative benefits on account of a former spouses still living - which is 50%, upon the former spouse's death the derivative spouse is entitled to 100% of the benefits the former spouse was receiving. What a widow receives depends upon their age: This amount is between 70% at age 60 and 100 % at age 65.
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