Selected Developments
2021 Update
Summarized below are some of the more important developments included in this update since the publication of the 2020 edition.
Appeals and Writs
California Rules of Court 8.100(a)(2), which holds that a notice of appeal must be liberally construed and will be sufficient if it identifies the particular judgment or order being appealed, is meant to support the strong public policy in favor of the hearing of appeals on the merits. K.J. v Los Angeles Unified Sch. Dist. (2020) 8 C5th 875. See §19.56.
Attorney Fees, Sanctions, and Professional Responsibility
A party may request Fam C §271 sanctions in a responsive declaration to a request for order. This is not barred by Fam C §213(a) because such a request for sanctions is not “affirmative relief” within the meaning of Fam C §213. Marriage of Perow and Uzelac (2019) 31 CA5th 984. See §9.4.
Family Code §§271 and 1101 create incentives for good conduct on the part of divorcing parties in the future and do not right past wrongs. Marriage of Gutierrez (2020) 48 CA5th 877. See §9.4.
Prospective sanctions may be awarded, if the evidence is sufficient to show that the amount of the award is tethered to anticipated attorney fees and costs. Menezes v McDaniel (2019) 44 CA5th 340. See §9.4.
Attorneys should be diligent about keeping accurate and contemporaneous records of their time spent on a case. See discussion on Taylor v County of Los Angeles (2020) 50 CA5th 205 at §23.2.
For a new California State Bar opinion interpreting Rule 1.4(a)(3) regarding an attorney’s duties to a client upon departure from a law firm, including guidance on the timing and substance of the notice that must be given to such clients when an attorney changes firms, see §23.19.
Child Custody and Visitation
The United States Supreme Court has addressed the standard for determining a child’s habitual residence, as well as the standard for reviewing that determination on appeal under the Hague Convention. See discussion of Monasky v Taglieri (2020) ___ US ___ 140 S Ct 719 at §7.4B.
A trial court’s determination that an older child’s medical condition was evidence of compelling circumstances warranting separation of younger children ignored established precedent that a disability is not automatically evidence of compelling circumstances. See Marriage of McKean (2019) 41 CA5th 1083 at §7.36.
Child Support
The court of appeal in Marriage of Hein (2020) 52 CA5th 519 shifted the burden of proof to the self-employed business owner to show that the information on his tax returns regarding business income and expenditures was correct, in furtherance of the public policy that seeks to advance children’s interest and considerations of fairness. See §§8.9A, 8.10.
The allowance of a “Jackson credit” in support of a child support obligor’s discharge of support was within the trial court’s discretion when a father’s daughter lived in his home full-time while he continued to pay child support to her mother. Marriage of Siva (2020) 53 CA5th 1170. See §8.31.
It was error for a trial court to attribute a non-zero timeshare to a father who had no visitation with his child during the relevant period, even though the child’s mother may have frustrated his visitation rights. County of San Diego v P.B. (2020) 55 CA5th 1058. See §8.34.
Domestic Violence
“Disturbing the peace of the other party” under Fam C §6320(c) is broadly defined, and as of January 1, 2021 includes “coercive conduct,” defined as “a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty.” See Stats 2020, ch 248, §2. For two new DVRO cases, see Curcio v Pels (2020) 47 CA5th 1 and Marriage of Ankola (2020) 53 CA5th 369 in §11.6.
A plaintiff’s decision to vacate a property she co-owned with defendant in order to escape abuse and stalking did not prevent the court from awarding her exclusive temporary use of the property until their civil dispute regarding its ownership was resolved. Nicole G. v Braithwaite (2020) 49 CA5th 990. See §11.6.
Personal property and liens. On and after January 1, 2022, the court may issue an order determining the use, possession, and control of real or personal property of the parties during the period an ex parte order is in effect and the payment of any liens or encumbrances coming due during that period. Fam C §6342.5(a). The court may make a finding that specific debts were incurred as the result of domestic violence and without the consent of a party, such a finding would not affect the priority of any lien or other security interest. Fam C §6342.5(b). See Stats 2020, ch 245, §1. See §11.6.
A petitioner’s failure to serve DVPA petition or request for continuance did not justify trial court denial of a continuance because Fam C §245 does not require prior service and contemplates that inability to effect service is among permissible reasons for continuance. See J.M. v. W.T. (2020) 46 CA5th 1136 at §11.15.
Discovery
Subject to Cal Rules of Court 3.1010(c) and (d), a deponent is not required to be physically present with the deposition officer when being sworn in at the time of the deposition. In addition, any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent, subject to any protective order issued by the court. CCP §2025.310(b). See Stats 2020, ch 112, §3, effective September 18, 2020, and §13.19.
Emergency Rules Related to COVID-19
The California Judicial Council adopted Emergency Rules to help the California state court system continue to operate in the midst of Governor Newsom’s March 19, 2020 statewide shelter-in-place order and the COVID-19 pandemic. Chief Justice Tani Cantil-Sakauye indicated that the emergency rules aim to “preserve the rule of law and protect the rights of victims, the accused, litigants, families, and children, and all who seek justice,” while also complying with the health directives put in place to respond to the pandemic. As of November 16, 2020, there are 13 emergency rules that have significant impact on the practice of family law, and which may be found at the Judicial Council’s website: https://www.courts.ca.gov/documents/appendix-i.pdf. All attorneys should familiarize themselves with these rules, local rules, and practices in the counties in which they practice, and also check regularly the Judicial Council’s COVID-19 News Center for further updates and changes: https://newsroom.courts.ca.gov/covid-19-news-center.
Evidence
Declarations in support of a Request for Order are intended to give notice to the other party of the basis for the request and are not automatically admitted into evidence, and unless they are offered as evidence, marked, and subject to objections, they are not evidence the court may consider in resolving disputed factual issues. Marriage of Pasco (2019) 42 CA5th 585. See §11.21.
Immigration
A Board of Immigration Appeals violated due process by (1) not disclosing evidence to plaintiffs before denying a I-130 petition on the basis of prior marriage fraud because plaintiffs did not have an opportunity to rebut the evidence, and (2) by applying too low a standard of proof because the Constitution requires at least preponderance of the evidence. Zerezghi v United States Citizenship Immig. Servs. (9th Cir 2020) 955 F3d 802, see §26.8.
When there is substantial and probative evidence that a beneficiary’s prior marriage was fraudulent and entered into for the purpose of evading immigration laws, a subsequent visa petition filed on the beneficiary’s behalf is properly denied under INA §204(c) even if first visa petition denied based on insufficient evidence of bona fide marital relationship. Matter of Pak (BIA 2020) 28 I&N Dec 113. See §26.13.
Judicial Council Forms and Court Rules
Revised Judicial Council forms and California Rules of Court have been inserted throughout the text.
Property
For a case analyzing the type of evidence that might inform a trial court’s distinction of a loan versus a gift from family members, see Marriage of Grimes & Mou (2020) 45 CA5th 406, 420 in §5.14.
The California Supreme Court has held that when a married couple acquires property in joint tenancy after January 1, 1975, the general community property presumption found in Fam C §760 prevails over the Evid C §662 form of title presumption, not only in actions between the spouses, but also in actions involving third parties. In re Brace (2020) 9 C5th 903. See discussion of Brace in §§5.19, 5.28, and 22.4.
A transmutation that fails to meet the requirements of Fam C §852 is voidable, not void. In a case of first impression, an appellate court has held that the statutory language and case law interpreting the statute of frauds support the conclusion that a defective transmutation is not void. Safarian v Govgassian (2020) 47 CA5th 1053. See §§5.28, 22.4.
A court of appeal found that husband was entitled to reimbursement under Fam C §2641 for the community funds used to pay the wife’s student loans even though wife’s employment was the source of the funds for repayment, and husband did not work outside the home. Marriage of Mullonkal & Kodiyamplakkil (2020) 51 CA5th 604. See §5.96.
Spousal Support
The court is not required to include a specific amount of income required to maintain a supported spouse’s marital standard of living in a support order. Marriage of Grimes & Mou (2020) 45 CA5th 406. See §6.9.
The supporting party’s ability to pay encompasses assets as well as income, and a court may look to those assets as a basis for the award of spousal support. Marriage of Deluca (2020) 45 CA 5th 184. When an asset such as income-producing property is encumbered by a loan, the court has the discretion to determine whether an obligation to make principal payments on that loan or business debt “reasonably and legitimately reduces the spouse’s net income available for support” in light of the totality of the relevant circumstances. Those circumstances include the extent to which the payment constitutes an ordinary and necessary business expense and whether disallowing the deduction would work a substantial hardship on the payer spouse. See §6.10.
A wife failed to produce any documented evidence proving her history as a victim of domestic violence to rebut a Fam C §4325 presumption, choosing to present her case exclusively through her own testimony. Marriage of Brewster & Clevenger (2020) 45 CA5th 481. See §6.10.
