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Recent Posts in Modifications of Support Category
| September 11, 2011 |
| DEVIATING From "Guideline" (Presumptively Correct) CHILD SUPPORT in HIGH EARNER Cases |
| Posted By Thurman Arnold, CFLS |
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Special Circumstances in Child Support Cases
Involving an Extraordinarily High EarnerActor Jon Cryer, one of the stars of the series "Two and a Half Men", was recently rebuffed by the Second Appellate District in his attempt to avoid ongoing and relatively meagre child support obligations to his former Wife ("Sarah") after Los Angeles County removed the party's child from her custody and initiated dependency proceedings. He was also ordered to pay significant fees to Sarah's attorneys for her expenses in defending the action. In a tightly reasoned series of rulings, Superior Court Judge Amy Pellman correctly navigated the California Family Code provisions relating to "presumptively correct" child support without the aid of reliable earlier precedent and resisted taking a reactive stance in response to Sarah's difficulties - or favoring Mr. Cryer unduly - by keeping her eye on maintaining financial equilibrium for both parties, and most importantly for the sake of the involved minor child. She was upheld in all respects on appeal and we now have some important new judicial pronouncements to guide us in apply
Family Code section 4053 and
FC section 4057 that relate to "special circumstances" and deviating from "guideline support."
I really think this case is notable as an illustration of how a forward thinking and thorough jurist - Judge Pellman - can see beyond the difficulties that people sometimes encounter in their parenting lives in an effort to maintain equanimity for the family triad.
IRMO Cryer (8/29/11) 198 Cal.App.4th 1039
Jon and Sarah were married, producing a son together, and later divorced. Sarah subsequently had a second child by a different marriage, which also ended. Although Mom had primary physical custody of the child with Jon for which she received "substantial" child support of $10,000 each month and a 65 % "timeshare", she began to suffer some difficulties that first resulted in Jon's ex parte application to modify the prior agreed upon orders to sole custody in his favor in May, 2009. Jon alleged that she had left his child unsupervised. The family law court denied that ex parte request but admonished Sarah not to leave her children unsupervised. Later that same month CPS became involved when her younger child suffered an injury at Sarah's home. A dependency proceeding was filed against her by the Department of Children and Family Services, which resulted in each child being placed with their respective fathers. There is no commentary in the decision about whether the fathers are working together to preserve and protect the sibling bonding.
When a dependency proceeding is filed by child protective services there are strict rules governing procedure that are generally designed to move the proceeding quickly towards determining whether jurisdiction properly exists, in order to ensure that the public policy favoring reunification with the problem parent is honored. However, Sarah's dependency proceeding moved extraordinarily slowly. In the meantime Jon battled her in Judge Pellman's courtroom. In addition, she was also likely defending against the claims of her second husband over custody of the younger child. We don't know what the exact alleged facts are over the circumstances giving rise to the dependency proceeding, but it is obvious that Sarah had her hands full with "two and a half men" - two former husbands and a young child.
Once his son was placed into his custody, Jon filed an application to modify the $10,000 in monthly support to zero since, after all, the child had temporarily been placed with him. Did he hope this might be the killing stroke (coup de grace) that would bring Mom to her knees, forever? There are litigants who feel that if they seize upon the other party's moment of weakness they will remain in power for the remainder of a child's minority, and a lawyer might reasonably advise this tactic under the aegis of "zealous representation". Jon's extreme request was his first mistake. When people want it all they are sometimes sorely disappointed.
Mother argued that $10,000/month was no burden to Jon because that amount was only 3 percent of his income at the time. She urged that the outcome of the dependency proceeding was uncertain, temporary, and subject to change and that without a steady child support order she would have no money to pay her mortgage, car payments, or any other bills. She pointed out that such a result could never serve the child's best interests.
This is where an outstanding trial judge makes all the difference, because superficially Jon's contentions were reasonable.
Prior to the hearing the parties exchanged income and expense declarations. Jon's "stated income" was alleged as $327,000 monthly when averaged over three years, he held $7 million in liquid assets, and monthly expenses of $29,000. By the way, if people want to go public about their affairs, litigation is the right choice. Sarah had "negligible" assets and overhead expenses of $10,000 monthly, not including attorney fees.
A "guideline" child support order using the "Dissomaster" based upon mother's reduced timeshare would have resulted in her favor of a modified amount of $1,141/month. Sarah argued she would lose everything if that was her only income.
The matter was heard on November 2, 2009. Judge Pellman declined to reduce Jon's child support to zero, even though Sarah had little custodial time under the pending dependency court orders, but she did reduce it significantly from $10,000 to $8,000 monthly. The trial court noted that since Sarah's custody arrangement could be modified by the dependency court in short order (which was expected to be the situation) and DCFS could liberalize Mom's visitation schedule at any time, and therefore found that the minor's best interest was best served if the boy could return to the same home that he had shared with his mother prior to the proceedings, and further that it was important for both the mother and child that she have the ability to have regular and consistent contact with him. She ordered the father to pay $20,000 in attorney fees to Sarah's attorneys.
Jon was not satisfied with this ruling. He immediately filed a motion for reconsideration together with a separate Order to Show Cause seeking an accounting of how all child support funds he'd paid had been used, alternatively requesting that these funds be placed into a trust account for the 'direct benefit' of his son. Evidently he believed that paying a mortgage, and having a car, only benefited Sarah and not the boy. Judge Pellman denied his requests (after making some technical corrections to her orders) and awarded that Sarah receive another $5,000 in attorney fees, which was likely only a portion of what she actually incurred.
Three months later Jon filed supplemental authorities prior to a review hearing that had been set, arguing that the dependency proceedings had still not be resolved and that Sarah's visitations had not been "liberalized" as the Court had anticipated. Further, he argued that Sarah wasn't looking for a job and that she was the one benefitting from the child support payments and therefore the Court should stay child support until such time as Sarah's timeshare was increased by the dependency court. This would have had the effect of "starving" Sarah out and really speaks volumes to the level of resentment that Jon was exhibiting - made ever more poignant for us by reflecting upon the degree of privilege from the extraordinary earnings that he enjoys. Again, a trial and appellate court would be reasonable in questioning his motives based upon all the economic circumstances, and in protecting the disadvantaged party consistent with the law. Which is exactly what happened in both courts. As a further expression of his overreaching (or that of his lawyers), Jon filed a new income and expense showing $474,861 in monthly earnings that averaged his income over the prior three years. While it is true that there is no fixed rule in what span of time courts review in determining income, still they are required to look to relevant evidence. Often times the prior 12 months provides this yardstick.
Sarah's counsel rejoined that Jon's income over the past 12 months was $791,666/month. Sarah was apparently the tick on the back of the elephant. In addition, Sarah's visitation had been liberalized to include home visits. Sarah argued it would be nice for the boy to have a home where these visitations could occur. Also, she had monthly expenses of $13,271 and no income beyond CS.
On May 10, 2010, Judge Pellman ruled that no changed circumstances existed from the time of her earlier orders to modify support further. There still was no "exit order" from the dependency court. The proceedings had not resolved. Moreover, the finding was unavoidable that Sarah would lose her home without support monies to pay the mortgage. The judge ordered Jon to pay another $40,000 in fees to Sarah's attorney.
Family Code section 4057(b) is an important provision that cuts both ways in terms of adhering to or departing from "guideline" support. That section states that the amount of child support that is presumed under our state-wide formula may be rebutted by showing that the amounts otherwise rendered by the guideline "would be unjust or inappropriate in [a] particular case." Increasingly attorneys for prime time parents are directing trial Courts to this section to support their claims that when custody is cut-off with the other parent, or severely restricted, that support should be zeroed out. For instance, the argument is frequently made, and sometimes accepted, that where the low earner parent has a
de minimis timeshare that would otherwise result in some child support to them based upon the parties' respective incomes, that the
de minimis timeshare parent should not receive child support because the prime time parent bears the substantial bulk of the financial burden. The problem with this analysis is that child related expenses for living accommodations are a fixed expense.
Marriage of Cryer implicitly recognizes this reality, and Judge Pellman apprehended the paradox clearly.
Jon apparently made this argument - he told the appellate court that Judge Pellman had abused her discretion because "he had nearly total responsibility for the child." Indeed, Justice Boren agreed that "under normal circumstances, such a deviation from guideline support would be an abuse of discretion." But given Jon's income, these were not normal circumstances but not necessarily for the reasons that Jon urged. "The trial court was faced with a pending and uncertain dependency case over which it had no control...." "The trial court also faced the strong possibility that visitation and custody arrangements could change quickly,..." "Furthermore, while one parent enjoyed an extraordinarily high income and could easily afford to pay monthlyl child support of $8,000 or $10,000, the other parent had essentially no income, and would be unable to maintain a household of the sort to which the child was accustomed absent substantial support." Therefore, Judge Pellman did not abuse her discretion.
The Court noted that although the child support formula, "a complicated algebraic" equation, is often referred to as "guideline" the term is "misleading. Instead, the formula yields "presumptively correct" numbers in all cases which may be rebutted by the particular circumstances of the parties and of the children. In this case the guideline presumption was rebutted consistent with the state policies that:
- Placing the interests of child has been legislatively declared to be the state's top priorty
- A "parent's first and principal obligation is to support his or her minor children according to the parent's circumstances and station in life
- Each parent should pay for the support of children according to his or her ability
- "Children should share in the standard of living of both parents and child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children."
Here "an order that resulted in [the] child's spending time with his father in an opulent abode and time with his mother in a low-rent apartment would have conflicted with principles of Family Code section 4053."
Moreover, while the father "may have found the situation unfair, the primary focus must remain on the child's wellbeing, not the parents' feelings" about money. The revised $8,000/month child support order was only from 1 to 2 1/2 percent of Jon's mnothly income. Judge Pellman's order therefore also served to minimize the harm that might inure to the parties' son had each parent merely supplying living conditions based upon their respective incomes, without help from the other. Finally, the appellate court dismissed Jon's argument that he should not be obligated to pay $8,000 month where the mother's Income and Expense declaration showed that she only paid $4,999 in monthly housing relating expenses. The trial Court had discretion to look the broad view of the parties circumstances and was not required to fix a number based upon any one element of their total expense package.
Irmo Cryer is also an important case for ordering attorney's fees to financially weaker parties. Jon argued that the initial award of $20,000 was more than the mother's attorney had asked for in her moving declaration, but Mom's attorney made an oral request for a greater suma that the hearing based upon fees that had increased since the moving declaration had been filed, and her papers had noted that further fees would be incurred. Next Jon argued that he had won a motion for reconsideration that made him a prevailing party, and that he should not therefore been required to pay Mom's fees. Not so said the appellate court, "[b]ecause of the importance of ensuring that the parties both have the ability to present their cases effectively, attorney fees may be awarded against a prevailing party in family law proceedings."
I have had the great good fortune to have met Judge Pellman, and applaud her efforts and her well reasoned trial court decision!
TWA |
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| March 02, 2011 |
| Must I Submit My TAX RETURNS to the COURT or to the OTHER PARTY? |
| Posted By Thurman Arnold |
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Q. I have a hearing coming up involving my ex-wife's request to modify spousal and child support. I've received a letter from her attorney demanding I bring my 2010 tax returns to court, and I do have them since I always file early. However, I don't want to produce these. I've always thought that these documents are confidential and that I cannot be made to produce them if I am not trying to borrow money or something like that. What are my rights?
A. The Revenue and Taxation Code sections 14251 and 19542 do declare that our income tax records are generally privileged from disclosure. However, in California that privilege does not bar production and consideration of your income tax records according to Family Code §3552 in proceedings involving any kind of support requests.
They are always available in discovery proceedings prior to the hearing itself.
However, what I do recommend is an agreement with the other party or their attorney that while the records may be voluntarily exchanged that they be disposed of or returned after the hearing. Always redact your social security number. Note that Family Code §3665(b) prohibits the other side from disclosing the contents of your tax returns to anyone except:
- the court
- the party's accountant
- some other financial consultant providing assistance with the case
- anybody else the court specifically approves
Of course, once you lose possession of them there is little practical way to enforce these limitations. This is a good reason to not simply hand them over in response to an informal request without safeguards in place.
Since you report that you were asked to bring them in a letter request rather than in response to a subpoena or some other form of discovery request that seek the returns prior to the hearing itself, you might hold on to them until the hearing. If they are to be discussed at the hearing (or if you don't exchange them before because no agreement can be reached on how to protect their confidentiality), then bring them but ask the court under FC section 3552(c) to seal them in the file if the court retains them, or to turn them back to you at the conclusion of the hearing. An advantage to you in handling it this way is that the other party won't have the benefit of reviewing them before the hearing, or have the prior opportunity to have them looked at by their expert.
Obviously, for parties who want to see the other side's returns they are better off obtaining them prior through a demand for production (assuming enough time exists since without a court order shortening time production demands don't have to be answered earlier than 35 days from the date of mailing), and receiving on the date of the hearing might justify asking the court to continue the matter to review them if they are complicated.
By the way, the rules are a little different if you file joint returns, or if your returns contain information that relates to a non-party like a new spouse or possibly a family corporation or LLC that you are only one of several participants of, since their information remains privileged and can only be produced under certain circumstances and using specific procedures - which is another Blog.
Thurman W. Arnold, CFLS
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| December 13, 2010 |
| 2011 REVISIONS to the California Family Code: Serving POST-JUDGMENT OSC's and MOTIONS |
| Posted By Thurman Arnold, CFLS |
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Effective January 1, 2011, you may serve post-judgment motions to modify custody, visitation, or child support orders by regular mail and file with the Court a declaration of mailing.
This is revised Family Code section 215. Until now applications to change these orders needed to be personally served upon the other party. This created hardship and added expense for many people, since it can be difficult to locate the whereabouts of the other parent in some families months or years after a Judgment for Paternity, Nullity, or Dissolution of Marriage or Domestic Partnership. This often necessitated service by publication if there was no good address - publication in a newspaper can approximate $400, and service is not deemed effective for at least a month after the fourth week of being published. Moreover, an order permitting Service by Publication also needed to be obtained, which itself costs money and time. To this extent the revision is a good thing.
The bad news is that this provision may encourage fraud, which might result in hearings where only one party really knew to be present. Litigants may claim that the papers were mailed when they weren't. Perhaps the person who signs the declaration (grandma) doesn't walk the letter to the mailbox. Perhaps a girlfriend claims she sent the notice but doesn't - how could it be proved? What happens when someone doesn't get the mail on the receiving end, whether because of the letter is lost, by inadvertence, or for having moved? So long as the moving papers contain the required Proof of Service they are presumptively valid and orders will issue even when the responding party fails to show up for the hearing.
Hence, the burden of attacking a modification taken by default shifts to the answering party. For instance if an order is issued by reason of their mistake, inadvertence, or surprise it remains valid until and unless a successful challenge is filed and upheld. These motions are expensive, and judges tend to disfavor them. Here your remedies are (a) filing a motion to quash service, which you won't be able to prove (how does one establish the pleadings weren't mailed?) and/or (b) filing a set aside motion pursuant to Code of Civil Procedure section 473, which generally must occur no later than six months from the date an order is entered. Likewise, while there is no time limit for setting aside orders obtained by extrinsic fraud (i.e., perjury), this is hard to prove. Third, the other party must bear all the initial expense, which can be considerable since these motions are technical and require the help of an attorney. Fourth, anyone responding to a motion is already at a disadvantage. The moving party has whatever time they needed to draft their paperwork, but once this is "served" the respondent must answer within about 15 days of the date of mailing (I will Blog the exact timing separately). Fifth, it is hard to un-ring a bell once a Court has heard from one party.
FC 215 streamlines litigation where people are responsible. It applies only to cases involving minor children. I imagine the public policy includes not feeling too protective of parents who have gone 'walk about.' The greatest likelihood for abuse is with child support modifications.
One thing is for sure: You must keep updated address information on file with the Court for any case involving kids until they turn 18, or 19 if they are still in high school and live with the first parent. If you move and fail to notify the court, and a modification occurs in your absence, you may not be relieved of your carelessness once you finally learn of the new orders!
Thurman W. Arnold, CFLS
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| 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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| November 11, 2010 |
| Is It Possible to Get My Ex's TAX RETURNS Without Any MOTION to MODIFY Pending Between Us? |
| Posted By Thurman Arnold |
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Q. We were divorced three years ago and I haven't taken my ex-husband back to Court. I think he is earning a lot more now. Is there anything I can do to find out what his situation is short of actually filing a modification motion?
A. Absolutely. There is a little known trick for obtaining useful information, possibly with a minimum of trouble, once each year. This is the Request for a completed Income and Expense Declaration (Form FL-150) pursuant to
Family Code section 3664.
When there is no motion or OSC pending for a modification, termination, or set aside of earlier support orders you are limited in terms of your discovery rights in California - assuming the proceedings were completed in the sense that nothing is pending or presently calendared (if there is no final judgment in a divorce, partnership dissolution, or paternity action then you are entitled to continue to utilize discovery and what I say here doesn't apply). You cannot, for instance, schedule a deposition or send out interrogatories or even subpoena records, at least not properly. I have seen lawyers send subpoenas when nothing was pending and if I had done nothing they probably would have gotten the information requested since the receiving party doesn't know the status of the case, but when I objected they backed off and canceled the subpoenas at once because it was abuse of process to do what they were attempting.
But in your case you only have the option provided for by FC section 3664. This entitles you to send out on an approved
FL-396 Request for Production of An Income and Expense Declaration After Judgment a request no more than once each year
(Family Code section 3663) for the other party to produce for you an updated Income and Expense Declaration.
Importantly, the responding party is required to attach to it their last year's federal and state personal income tax returns. (Family Code section 3665).
If they do not respond to you within 35 days, or if there information is incomplete as to wages, you may serve Judicial Council Form Request FL-397 upon their employer per
Family Code section 3664(b) and (c). Unfortunately, compliance by the employer is voluntary and so this provision lacks teeth. Yet if you later do file a motion and can show a history of noncompliance by the employer and/or the other party you are more likely to recover attorney fees or sanctions as well as prove that the other party is being evasive or possibly dishonest and this may help you not only to carry your burden of proof and obtain a modification but it may impact how strongly the court acts towards your ex. In the case of family businesses where there is a lack of cooperation it helps the Court to see that you are being stymied.
Section 3664 is also a very useful tool for parties who are trying to modify or terminate support payments that they have been ordered to make. If you are a payor former spouse or domestic partner and want to terminate the other party's support rights, you would begin by sending them the Request. Again, if they fail to cooperate and comply it makes them look like they are hiding something.
Finally, Family Code section 3667 entitles you to recover certain sanctions where the Income and Expense declaration wasn't provided you, was incomplete, or lacked the required tax return attachments. While you cannot recover attorney fees if you don't actually have an attorney (and this section doesn't provide for them anyway), you can recover deposition and related costs, like for subpoenaed records (which can be significant charges), even where you are a self-represented party.
Good luck!
Thurman W. Arnold III,
Certified Family Law Specialist
Board of Specialization, State Bar of California
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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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| June 11, 2010 |
| What should I know if I want to LIMIT or TERMINATE SPOUSAL SUPPORT in the future? |
| Posted By Thurman Arnold |
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Q. My wife and I were married for 14 years. We have two children, aged 11 and 13. We are both in our early 40's. My wife has a college degree, but quit working shortly before our first child was born. I am a doctor, and she was a nurse at the local hospital before she quit. Our divorce is not final. I think she should be able to support herself once she gets some updated training, although I don't object to supporting our children. She says she won't work until until our youngest child finishes high school. What should I ask the judge to do and what should I expect to limit my spousal support exposure?
A. There are a number of things you need to know.
First, you have a long term marriage within the meaning of Family Code section 4336. Start with the expectation that you will be paying alimony for at least half the length of the marriage.
Second, Family Code section 4320 sets forth the most important factors that a court is required to consider in issuing a spousal support award; it is also the decisive section for determining whether spousal support should be modified, reduced, or terminated in the future. As to later modifications, this means that whatever the court decides as to the 4320 factors (or depending upon what facts are recited in your Marital Termination Agreement) may have a huge impact on how much you pay and for how long. The 4320 factors only come into play when a final judgment enters: Although courts are supposed to consider them in dealing with temporary spousal support issues, they typically do not.
Third, it is essential that you convince the Court to give your former spouse a Gavron warning. I have separately blogged this concept. In essence its effect is to give a supported spouse something of a free pass to rehabilitate themselves and enter the work force until and unless they've been given advance notice of that expectation. If you settle your case without going to trial, as I sincerely hope you do, make sure that a Gavron Admonition is included in your settlement agreement. It starts the clock ticking on your former wife's obligation to become self-sufficient. However, you need to realize that her ability to do so will be impacted by her child rearing responsibilities to whatever extent they exist, and most courts will consider this. It becomes less relevant with older children. Given the length of your marriage (14 years) your youngest child will be finishing high school right about the time that you reach half the length of the marriage.
Fourth, consider trying to get what is called a Richmond Order. Essentially this is an order or an agreement to terminate spousal support jurisdiction on a specified date unless, prior to the fixed termination date, the supported spouse files a motion showing good cause to modify the amount of support or its duration. Unlike most orders which are open-ended, a Richmond Order discourages delay and supports the goal of California that an ex-spouse receive support only so long as is reasonably necessary to get back on their own two feet. They are generally not appropriate in extremely lengthy marriages, or in situations where health or age makes it unreasonable to believe the other party can become self-supporting.
Age is a factor in your case because there is still time for your Wife to develop financial independence.
The effect of the Richmond Order is to place the burden upon the supported spouse to justify continuing support because of unforseen future events. Most judges prefer Richmond orders, but you won't get it unless you request it. Attorneys representing supported spouses are less likely to agree to them in Marital Settlement Agreements at first blush. There may be good reasons, however, that be persuasive if you persevere.
Fifth, consider a request for step down spousal support orders where support is reduced in increments into the future; this may make perfect sense depending upon the length of marriage, whether there are children, and the supported spouse's age.
Sixth, consider a Family Code section 4331
Vocational Training Examination. Even if the Court concludes that it is not reasonable for your wife to work now, this may create an important benchmark which will be useful to you in the future. Downstream if she does not obtain employment she arguably might have, the Court may be convinced it should impute income to her that might have otherwise earned.
At this stage of the proceedings you are setting the stage for a future reduction. That requires smart advance preparation. Find a competent spousal support attorney in your area!
By the way, this is exactly why you should want mediation rather than a court judgment. IMHO. Mediation takes the future into consideration, and creates a safe container for the parties to talk about it!
Thurman Arnold
http://www.DesertDivorceandFamilyLawyer.com
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| May 14, 2010 |
| What do I do about SPOUSAL SUPPORT if my ex-spouse is COHABITING with another man? |
| Posted By Thurman Arnold |
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Q. My ex-wife is living with another guy. I am paying her spousal support per our settlement agreement. I have remarried, and this really upsets my present wife. Besides, I don't think it is fair. What can I do?
A. Where it can be negotiated, most lawyers who represent "payor" spouses attempt to write in a provision within the Marital Settlement Settlement Agreement that says cohabitation will terminate spousal support. If your agreement so provides, you have additional leverage to modify or terminate spousal support.
But even if your agreement, or the Judgment, doesn't say this Family Code section 4232 must be considered by the Court upon your application to modify or terminate spousal support. That section tracks the public policy of this state that you should not be underwriting your ex-wife's new household, or that you should not be made to pay her spousal support, where her expenses are being covered by a new romantic partner.
§ 4323 creates a rebuttable presumption for a decreased need for alimony once you convince the Court that your ex-wife is living with a person of the opposite sex, who is actually contributing to her expenses. This does not include persons who are simply opposite sex roommates. Look to establishing the length of their joint living circumstances, consider utilizing discovery to establish whether they have joint credit cards or household accounts, and be patient and don't file for relief too early. An ex partner may take on a roommate for purely financial reasons - that is not by itself cohabitation. On the other hand, even if you are not successful terminating support the first time, if they continue to live together you will have an improved chance at success a year or more later.
Don't expect to ever learn what that person earns. California law is pretty clear that you won't ever get that information. Look instead to what that person contributes to joint expenses, or to your ex-wife's expenses.
I do not recommend that you hire a private investigator to peek into their bedroom to establish that they have an intimate relationship. But what course you take may depend upon how she characterizes the relationship. For instance, if she claims there is not an intimate relation, then proving there is may be useful to you.
Additionally, even if your ex spouse is receiving financial benefits from her boyfriend or girlfriend, that does not mean that the Court will terminate as opposed to reduce her support - if the marital standard of living that the two of you enjoyed was high, and she is shacking up with a tennis coach, the Court might choose to reduce her support by imputing income to her commensurate with the benefits she is receiving rather than cutting her off entirely. Don't think that just because you feel violated that the Court will view it in the same way.
Finally, California law on cohabitation only speaks in terms of living with a person of the opposite sex. However, if the fact is that your ex-spouse is living in a romantic relationship with a same sex partner, it is hard to imagine that a courageous judge will not act to reduce your exposure. We have no appellate decisions on this question yet, but we will soon.
Thurman W. Arnold III
http://www.thurmanarnold.com
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| April 13, 2010 |
| How Do I Defend a Request by My (Former) Spouse to SET ASIDE our Support Orders? |
| Posted By Thurman Arnold |
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Q. My former spouse claims that I lied on my Income and Expense Declaration and filed a motion to set aside that order, and is now seeking more money. What are my rights?
A. This type of support modification can occur in two situations: Where it is alleged that you aren't paying enough because you committed some fraud or where you alleged you are paying too much because the other party committed some fraud in connection with an Income and Expense Declaration [FL-150] or some other sworn pleading filed with the Court.
If you are defending a support set aside motion, there are three bits of law you need to know.
First, there are important time limitations on when a motion must be filed before a Court will set aside a prior support order. As action based upon fraud or perjury must be brought within six months after the date on which the complaining party discovered or should reasonably have discovered the fraud or perjury. Family Code section 3691.
Second, the moving party must convince the trial court that all the other party has established is that it was a) inequitable when made or b) subsequent circumstances caused the the supported ordered to be inadequate or excessive, but that nothing more has been proved that that those grounds are insufficient by themselves. Family Code section 3692.
Third, on April 8, 2010, the case of In re Marriage of Zimmerman was decided and certified for publication and it is the first reported California appellate decision to squarely address these family code provisions. You will want to cite this case to the judge.
In Zimmerman a mother and former wife filed a motion to have all child support recalculated going back some five years, on the ground that the father had committed fraud and perjury with respect to prior order by concealing income in his earlier FL-150's. However, because of facts alleged in earlier pleadings she had filed with the Court a declaration making reference to these very same claims, the trial court was affirmed when it found that more than six months before she filed the Motion she had discovered or reasonably should have discovered the alleged fraud and perjury.
This is a very important case in this area because family law litigants are frequently claiming in their papers that the other side is lying or concealing information. This case stands for the proposition that it is unwise practice to even mention these claims prematurely, because if one does then the defending party will point to those statements - 'you see, she knew she had this claim two years ago.' It is always unwise to make statements to the Court about dishonest conduct on the part of the other side where there is no solid proof, yet, in any event.
Thurman W. Arnold III
http://www.ThurmanArnold.com
4/13/10
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| August 29, 2009 |
| Is OVERTIME considered in fixing CHILD SUPPORT? |
| Posted By Thurman Arnold |
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Q.: Is overtime a factor in considering child support?
from T
A. T:
Yes, if there is already a history of overtime - meaning a court won't order a parent to work overtime who hasn't been (there is case authority that a court cannot order a parent to work more than a regular work regimen), but if they have already been working it then the court must take that history into account when projecting future income for purposes of
guideline support (Xspouse or Dissomaster, depending which California county you are in).
Please see this Blog article about temporary support. This applies equally to spousal support.
T.W.A.
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