Recent Posts in Enforcing Family Law Judgments/Agreements Category
| December 03, 2010 |
| ELKINS and New FAMILY CODE SECTION 217: How It AFFECTS YOU! |
| Posted By Thurman Arnold, CFLS |
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The most important new rule in decades affecting the experience of California Family Law litigants is set to be unleashed on January 1, 2011.
It promises a radical change in the way that all family court proceedings - whether they be dissolutions, legal separations, annulments, support applications, custody, and modifications of all of the above - are processed and decided by Superior Court judges and commissioners.
This is a result of the Elkins Task Force, which has been quietly operating in the background of the California family law world since roughly August 6, 2007, when the game changing case of Jeffrey Elkins v. Superior Court (2007) 41 Cal.4th 1337 was decided by our California Supreme Court.
Elkins was a landmark decision which held that the Contra Costa County Superior Court could not through its local rules limit parties in marital dissolution actions to introducing evidence in written declaration form that had to be submitted in advance of trial, or prohibiting except in "unusual circumstances" one party from cross-examining the other about the contents of those declarations. Such a rule, intended for the sake of calendar management and judicial economy, not only had the practical if unintended consequence of favoring parties with attorneys who understood how to work with these rules but fundamentally it violated due process by cutting off litigants' abilities to present all relevant, competent evidence on material issues. Judges, as the triers of fact, are not able to assess witness demeanor and credibility without live testimony.
What is earth shattering about this decision in these economic times is that the Contra Costa Superior Court had urged that its policies and local rules were essential for the "expeditious resolution of family law cases." Soon to be former Chief Justice Ronald George rejected this justification:
"We are aware that superior courts face a heavy volume of marital dissolution matters, and the case load is made all the more difficult because a substantial majority of cases are litigated by parties who are not represented by counsel. [Reference omitted]....
In light of the volume of cases faced by trial courts, we understand their efforts to streamline family law procedures. But family law litigants should not be subjected to second-class status or deprived of access to justice. Litigants with other civil claims are entitled to resolve their disputes in the usual adversary trail proceeding governed by the rules of evidence established by statute. It is at least as important that courts employ fair proceedings when the stakes involve a judgment providing for custody in the best interest of a child and governing a parent's future involvement in his or her child's life, dividing all of a family's assets, or determining levels of spousal and child support....
Trial courts certainly require resources adequate to enable them to perform their function. If sufficient resources are lacking in the superior court or have not been allocated to the family courts, courts should not obscure the source of their difficulties by adopting programs that exalt efficiency over fairness, but instead should devote their efforts to allocating or securing the necessary resources."
Justice George ended by directing the California Judicial Council to create a task force (the 'Elkins Task Force) "to study and propose measures to assist trial courts in achieving efficiency and fairness in marital proceedings and to ensure access to justice for litigants, many of whom are self-represented. Such a task force might wish to consider proposals for adoption of new rules of court establishing state wide rules of practice and procedure for fair and expeditious proceedings in family law, from the initiation of an action to postjudgment motions. Special care might be taken to accommodate self-represented litigants. Proposed rules could be written in a manner easy for lay-persons to follow, be economical to comply with, and ensure that a litigant be afforded a satisfactory opportunity to present his or her case to the court." Hence, the Elkins decision is essentially a Jeffersonian ruling that its intended to empower family law litigants and to require counties and courts to adapt.
The Elkins Task force completed its work and has issued lengthy recommendations. The first changes take place on January 1, 2011. Possibly the most important change is embodied in Family Code section 217. It states:
"(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.
(b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.
(c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony.
If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing."
Family Code section 217 will cause a sea-change in day to day family court proceedings across our state, unless family court judicial officers ignore it to the limited extent possible by court rules. It will likely have immense financial and resource consequences upon not only the courts but upon parties to family court proceedings. It will force the state government in coming years to study whole new paradigms for resolving divorce and domestic partnership dissolution outside the adversary template, including those currently practiced in New Zealand and southern Australia.
It will also pressure parties to consider mediation, and collaborative processes which occur outside congested courthouses, much more carefully. The costs of adversary litigation are about to sky-rocket, making mediation even more appealing from a financial perspective (I have written extensively about the emotional and psychological benefits here an elsewhere). There simply is no governmental money available to absorb the coming Elkins Onslaught. For more information about an alternative method for resolving family disputes, please visit us at
www.DesertFamilyMediationServices.com.
At the same time, at least in the short run taken together with some of the other revisions that become effective next month, it may encourage more people to litigate more stubbornly and so make mediation seem less attractive than it did before the changes (just the reverse will be true). Some folks will mistakenly assume that this invites the use of court hearings as a live-testimony forum for sharing unresolved complaints relating to their marriage or domestic partnership dissolution with the other party in open court. Instead, judges will sustain objections to such irrelevant material and parties who seek to use Family Court as a platform to air relationship grievances will find themselves alienating the trier of fact in ways that will have adverse consequences to them beyond just the time and expense of the exercise.
The purpose of today's Blog is to introduce you to section 217 and the new changes. I will follow up with more articles in coming weeks. Without a doubt the new rules will make all the information I provide on my websites more relevant and timely for my readers.
December is new legislation month at the Southern California Family Law Blog presented by Family Law Attorney Thurman W. Arnold. My goal is to inform you well, and early on, on any number of topics that will improve your outcome in family law matters and hopefully help you to reach results that are fair for you, your spouse or ex-partner, your children, and your blended and extended families.
T. W. ARNOLD, III, CFLS
(State Bar of California, Board of Legal Specialization) |
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| September 20, 2010 |
| How Can I Be Sure a Court Will Enforce My AGREEMENT Reached With My Spouse OUT OF COURT? |
| Posted By Thurman Arnold |
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Q. My wife and I have reached some agreements about support and property division in our dissolution proceedings. Neither of us have attorneys. I want to write something up that is enforceable. Is there anything I should know?
A. If a case has already been filed and so is "pending", and whether you have attorneys or not, if you and your wife reach an agreement on any issue outside of court and you want to be sure that she can't back out of it before it is signed by a Judge and becomes an order, it is essential that you make reference to California Code of Civil Procedure section 664.6 in any written agreement you prepare.
The terms of all types of agreements that you reach as an incident to pending family law litigation must be independently approved by a court commissioner or judge. Usually these judicial officers just want to know that both parties are in agreement, and will not substitute their opinions for what you've decided, but not always. Particularly where children are involved, judges have an independent obligation to ensure that a child's best interests are protected. Still, judges will not usually reject your agreements - however, if one side backs out before the agreement becomes an order or a judgment, when children are involved a court may be more inclined to refuse to enter the disputed order than it would be if the issues involved property division, debts, or spousal support.
Often times people reach agreements in the hallway outside the courtroom, and then come into court and tell the judge what their agreement is - once that agreement is 'on the record', most courts are going to enforce it. Those agreements often require, however, some further writing like a stipulation and it when the stipulation is presented days or weeks later that the other party may have changed their mind. You now need to enforce that agreement, possibly by a Motion under CCP 664.6.
The problem also arises when cases get settled away from court, during the lunch break, or when the agreement doesn't get put on the record for any number of reasons. Maybe they won't sign some other document that the signed agreement contemplated or obligated them to comply with.
Any agreement you reach with anyone is a contract if certain conditions are met. Unfortunately, failure to abide by such promises may only give rise to a claim for breach of contract under civil law - which is pretty worthless in family law proceedings because you have to file an independent civil action to enforce them, which takes months or years to resolve.
You want enforceable orders. These are something more than mere verbal or written promises, or contracts that haven't ripened into Orders or Judgments.
C.C.P. section 664.6 is extremely important and useful for enforcing written agreements, because it gives the Court the power to enforce the terms of those the agreements as court orders, and to interpret them later if there is disagreement about what was in fact agreed to.
However, in order for 664.6 to work for you, you need to either reference the statute in the document that is signed or in an oral statement on the record. You don't need to mention the section specifically, but I recommend that the following language should appear in the agreement or court transcript: "The parties request the Court to retain jurisdiction to enforce the terms of the settlement agreement per CCP 664.6" is the optimal language to use.
Thurman Arnold
http://www.DesertDivorceandFamilyLawyer.com
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| December 20, 2009 |
| ENFORCING SUPPORT ORDERS in California |
| Posted By Thurman Arnold |
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Enforcing California Child Support and Alimony Orders
As a private person, you have a host of remedies. Some require the assistance of an attorneys, other may not depending upon your relative interest and motivation. These include:
Wage Assignment Orders
In all cases where California support orders are issued (or even if out of state support orders are being enforced here), a Wage Assignment Order (aka
earnings assignment or income withholding order) must issue which includes arrearages if applicable and once they have been determined.
Family Code section 5230. In order to be effective, these must be served by at least first-class mail upon the obligor's employer. Not later than 10 days thereafter, the employer is required to commence payments of the court ordered amounts so long as and only to the extent that they do not exceed 50% of the employee's net income per pay period. This must continue until the employer receives notice of termination of the order. These orders take precedence over any other kind of non-support assignment or wage garnishment. An employer who wilfully fails or refuses to honor the earnings withholding order is liable for the amount it should have paid over.
Family Code section 5241
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Support Contempt Proceedings
A party who wilfully refuses to comply with any court order, and specifically an order for the payment of child support, spousal support, or an attorney fee order, may be guilty of contempt of court.
Family Code section 290
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As to support, each monthly failure to pay all or any part of the court ordered support is one count of contempt, and each count subjects the contemnor to up 5 days in jail and a fine of up to $1,000. Because contempt potentially involves jail time, they are difficult and expensive to prove but they can be a very effective remedy for getting the attention and compliance of a party who values their freedom. You will not succeed without an attorney who has actual experience litigating them.
So long as you do not allege more than 35 counts of contempt, the other party will not be entitled to a jury trial but in any case if they do not have private counsel the family court is going to appoint the Public Defender's office to represent them in the contempt proceedings only. There is a 3 year statute of limitations for pursuing contempt for nonpayment of support and attorney fees; there is a two year statute of limitation barring all other forms of contempt of court orders.
Writ of Execution/Receiver
Support orders may be enforced like any other money judgment. This means that you may obtain a Writ of Execution and enforce a money judgment against bank accounts, or property, or even ask that a receiver be placed in a business owned by the obligor to collect money as it comes in.
Interest; Bankruptcy; Renewal of Judgments in Support Cases
Support orders accrue interest at 10% from the date of each installment becomes due.
Family Code section 155. Courts do not have discretion to relieve the obligor of the interest. Interest is a serious matter, since at 10%, principal doubles every 7 years.
Unpaid support cannot be discharged in bankruptcy.
Support orders never die. California is one of the toughest states upon deadbeat
father
s and deadbeat mothers. You do not need to renew a support judgment in order to preserve it [
Family Code section 291], unlike a 10 year rule of limitations for renewal of judgments that applies for almost all other types of civil money judgments. There is no defense for not paying a valid support order except possibly one - where the party entitled to the support order disappears and actively hides the minor child for whom the support is made during the entire period of minority, then perhaps an obligor may succeed in having a court vitiate the support order. However, the defense of laches (an unreasonable delay in enforcing a legal right) may be asserted against the State in cases where welfare was paid out for the benefit of the other spouse or a minor child but a long, long time passes before any agency undertakes action to recover it.
Attorney's Fees in Collecting Unpaid Support
You may also be able to recover your attorney's fees incurred for your enforcement action pursuant to
Family Code section 3557.
UIFSA in California
The Uniform Interstate Family Support Act has been adopted in every state, and similar uniform rules for collecting support have been adopted in many foreign jurisdictions which allow for enforcement of orders here. The purpose of this uniform act is to augment and expedite spousal and child support enforcement, and even the collection of related attorney fees, wherever a support obligee (a parent who owes per a support order in any state) moves or can or might be found. This way, to the extent that someone relocates between States or simply works in a neighboring state, and whether or not they are avoiding a support obligation, support orders from any issuing state can be enforced quickly and efficiently.
If support orders issued in Maricopa County, Arizona need to be enforced in Riverside County, California, certified copies of the out of state decree are merely filed and registered here and immediately any and all of the remedies outlined above become available. Even if the support obligor doesn't live or work here, but owns property in this State, orders can issue that can enforced against personal property or real estate. The California UIFSA statutes are found at Family Code sections 4901 et seq. You don't need to be a California resident to take advantage of these rules.
Under certain limited circumstances child support orders issued in another state may be modified in California. This means that if a payor parent moves here, once the out of state support order is registered here it may be possible to modify it under more favorable California laws. Conversely, if parent and child live here and the payor parent does not but wishes to avail themselves of California law, they too may be able to seek a modification here. Once that occurs, California becomes the new jurisdictional situs for further support modifications and enforcement. However, although spousal support can be collected here, whether to modify it always remains under the control of the original state where orders were issued.
Child Support Civil Penalty
This may be an extremely effective tool for collecting delinquent child support in California: The child support civil penalty statutes found at
Family Code section 4721 - 4728. Essentially if the statutory procedure is correctly followed, each and every unpaid installment of child support will incur a civil penalty of up to 6% percent per month.There is a maximum 72 percent of the original amount that can be imposed, but this 72% interest in a year! If this doesn't get the deadbeat parent's attention, it is hard to imagine what will.
To avoid the child support penalty once the requesting party has given proper notice of the delinquency, the obligor must pay the past due support money within 30 days. If they do not, the obligee (party who is owed) may file a motion for a judgment for the principal amount plus penalties and interest. This presents the last opportunity for the payor parent to work out a solution and convince the Court it is not fair to impose the penalty. Thereafter, the judgment is enforceable in the same manner as any other.
Child Support Security Fund
Another useful support collection tool in California is found beginning at
Family Code section 4560. This allows the Court to order that the child support payor deposit into a
court controlled account up to one year's worth of future support. This account is then used to guarantee the normal flow of monthly child support monies to the recipient parent. Family Code section 4570 provides that if monthly installment thereafter is more than 10 days late, the court shall order the recipient parent paid from that account and that the account be replenished. Obviously, this method is more likely to enforced as against an affluent deadbeat parent.
Department of Child Support Services Enforcement
If the Department of Child Support Services
(DCSS
) becomes involved, additional enforcement options come into play. DCSS must enforce orders where custodial parents are receiving State Welfare and other forms of governmental assistance. In such cases, they may also enforce spousal support orders.
Even if you are not receiving governmental aid you may assign your collection rights for child support to the Department and they must enforce these orders free of cost to you. However, they are over burdened, they are a bureaucracy, and they are not your personal advocate. There are pros and cons in utilizing their services.
For instance, they are able to intercept tax refunds and can access tax records that are otherwise confidential or that the other party just refuses to produce. They can force banks to give up information regarding cash flow. They can cause the California DMV to suspend a driver's license. They can take away Passports. They can suspend professional licenses. They can seek criminal prosecution for Penal Code failure to support crimes.
DCSS employees are overworked and underpaid. Still, if you lack funds and access to competent legal counsel, DCSS may aid you.
Thurman Arnold, Attorney at Law
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