Selected Developments
2019 Update
Summarized below are some of the more important developments included in this update since the publication of the 2018 edition. CEB’s companion pamphlet, Case and Legislation Highlights, is no longer published.
Attorney Fees
A court may order that a party paying spousal support may deduct Fam C §271 sanctions imposed upon the recipient spouse from a “variable component” of the spousal support award, as long as the reduction in funds does not create an unreasonable financial burden. Marriage of Pearson (2018) 21 CA5th 218. See §9.4.
Bankruptcy
Noting precedent holding that 11 USC §523(a)(15) should be interpreted “broadly and liberally … to encourage payment of familial obligations rather than to give a debtor a fresh financial start,” a California court held that a debt is nondischargeable under that section if the nature of the debt is such that its discharge would directly and adversely impact the finances of the debtor’s spouse or former spouse. Marriage of Vaughn (2018) 29 CA5th 451. See §22.118.
Child Custody and Visitation
Family Code §3044, which states that there is rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interests of the child, was amended to reflect the decision in Jaime G. v. H.L. (2018) 25 CA5th 794. Stats 2018 ch 941. Jaime G. held that when a court determines that the presumption has been overcome, it must make specific findings in writing or on the record on each of the factors in Fam C §3044(b). See §7.23.
Child Support
Under Fam C §4058(a)(1), stock options should be included in gross income for purposes of calculating child support, regardless of whether the parent elects to exercise the option and sell shares of stock. Marriage of Macilwaine (2018) 26 CA5th 514. See §8.10.
Because children are entitled to the standard of living attainable by their parents’ income, the “needs” of a child of extraordinarily wealthy parents will exceed the bare necessities of life and the trial court erred in capping the father’s child support obligation at $24,000 under Fam C §4057(a)(3) based on the lifestyle the father provided the children and both parents’ historical spending, rather than on the attainable standard of living. Marriage of Macilwaine (2018) 26 CA5th 514. See §8.19.
Domestic Violence
The requirement to make detailed findings in Fam C §6305(b)(2) for a mutual restraining order applies regardless of whether the requests arise from separate incidents or from the same incident. Melissa G. v Raymond M. (2018) 27 CA5th 360. See §11.6.
The Violence Against Women Act (42 USC §§13925–14045d) lapsed in December 2018. Authorization for the law’s programs expired due to a partial federal government shutdown that began on December 21, 2018. The law authorizes funding for social service agencies that aid victims affected by sexual violence, including rape crisis centers, shelters, and legal-assistance programs. Although the House and the Senate each passed spending agreements that included clauses to extend VAWA until February 8, 2019, the fate of the Act was tied to the larger budget debate, which was based on a dispute between Democrats and Republicans over funding for a border wall. As of this writing, the government was still shut down. References to VAWA in chap 26 have not been deleted.
Community Property
Although federal law prohibited a trial court from compensating an ex-wife for the loss of her share of her ex-husband’s military retired pay when he elected to receive federal disability benefits, the resulting reduction in wife’s income may constitute changed circumstances such that the court could make a proper ruling on a request for modification of support. Marriage of Cassinelli (2018) 20 CA5th 1267. See §5.32.
Under existing law, pets are treated as personal property and if acquired during the marriage, they are generally characterized as community property. Legislation effective January 1, 2019 provides guidance to the courts on awarding ownership of a pet in a divorce proceeding, allowing for the assignment of “sole or joint ownership” of a “community property” pet, taking into consideration the care of the pet. The court may also make temporary orders related to the care of the pet, before the final ownership determination. See Fam C §2605 (added by Stats 2018, ch 820). See §5.36B.
A family court is not bound by the decisions of the IRS or FTB in deciding how to allocate a tax liability, nor by a determination by the IRS that one spouse is an “innocent spouse” under IRC §6015. Marriage of Marshall (2018) 23 CA5th 477. See §5.79.
Enforcement
Postjudgment interest on an equalization payment ran from the date the payment was due, not from the date of the trial court’s postjudgment orders, because the judgment included a specific sum for payment and bore legal interest under CCP §685.020(a). Marriage of Dalgleish & Selvaggio (2017) 17 CA5th 1172. See §20.21.
Immigration
The mother-father distinctions in the physical presence requirements for the transferral of derivative citizenship to children born out of wedlock have been held to violate the equal protection clause of the Fifth Amendment. Sessions v Morales-Santana (2017) 582 US ___, 137 S Ct 1678. See §26.31.
Judicial Council Forms and Court Rules
Revised Judicial Council forms and California Rules of Court have been inserted throughout the text.
Jurisdiction
A family court has jurisdiction to renew an order issued by a juvenile court after the juvenile court has terminated its jurisdiction. Garcia v Escobar (2017) 17 CA5th 267; Priscila N. v Leonardo G. (2017) 17 CA5th 1208. See §11.64.
The Uniform Interstate Family Support Act authorizes one state to determine arrears and specify a method of payment for orders from another state. In Marriage of Connolly (2018) 20 CA5th 395, the court of appeal found that a Utah judgment did not modify or conflict with a California support order, it simply calculated spousal and child support arrearages. See §21.13.
Marriage
The state has an interest in seeing that no marriage is declared void as the result of fraud, unless the supporting evidence is clear and convincing. A husband failed to meet this burden to prove to show that his wife fraudulently induced him to enter into the marriage by intentionally misrepresenting her agreement to be bound by their Mahr agreement. Marriage of Turfe (2018) 23 CA5th 1118. See §3.13.
A failure to return a signed marriage license to the county recorder within 10 days after the marriage ceremony as required by Fam C §306 does not invalidate the marriage after the solemnization ceremony has taken place. It is the “necessary step of solemnizing” the marriage that makes the union valid. Chaney v Netterstrom (2018) 21 CA5th 61. See §3.19.
Parentage
Legislative changes operative January 1, 2019 revised the Uniform Parentage Act and other Family Code provisions with the explicit goal of ensuring that “the parentage provisions of the Family Code treat same-sex parents equally.” AB 2684 (Stats 2018, ch 876). See Fam C §§7550–7562. See updates throughout chap 8A.
A trial court did not err finding that a biological father was a third parent under Fam C §7612(c) based on his strong bond with his daughter, developed with the consent and support of the child’s mother and her husband over the course of 3 years. C.A. v C.P. (2018) 29 CA5th 27. See §§8A.13, 8A.17, 8A.25.
When a child files a parentage action to obtain a court order determining parentage of her mother, seeking sole custody orders in order to obtain Special Immigrant Juvenile Status orders, notice to her father was required, but joining him was not mandatory because he did not seek to be joined in the action. Bianka M. v Superior Court (2018) 5 C5th 1004. See §8A.40.
Procedure
For a case extending “a species of specific jurisdiction in which a defendant acting elsewhere causes effects in California of a nature that are ‘exceptional’ and subject to ‘special regulation’” in California, see Hogue v Hogue (2017) 16 CA5th 833. The Hogue court held that respondent’s act of purposefully sending a video of a mock suicide from his residence in Georgia to plaintiff in California, particularly in the context of alleged domestic violence that took place in Georgia, was indisputably conduct that would disturb plaintiff’s peace of mind within the meaning of the Domestic Violence Prevention Act, and thus the basis for granting a restraining order under that Act. See §11.6.
Family Code §217 precludes reliance on inadmissible hearsay over a party’s objection when that party has no opportunity for cross-examination. Marriage of Swain (2018) 21 CA5th 830. See §§11.51, 25.23.
A trial court did not violate Fam C §217 by failing to receive live testimony when the only such request was made contingent upon trial court’s ruling and was not subsequently renewed, and arguments were then based on the written documents. Marriage of Binette (2018) 24 CA5th 1119. See §25.23.
Proceeding In Forma Pauperis
In order to facilitate equal access to the courts embodied in the public policy of Govt C §68630(a), an official court reporter or other valid means to create an official verbatim record for purposes of appeal, must generally be made available to in forma pauperis litigants upon request. Jameson v Desta (2018) 5 CA5th 594. See §10.69.
Property Agreements
Family Code §1615(c)(3), which requires a written advisement and waiver of an unrepresented party’s rights under a premarital agreement, applies even when the premarital agreement was initially generated by the unrepresented party. Additionally, a recitation in a premarital agreement indicating that an unrepresented party had received it more than 7 days before executing it is not binding when the party was not in fact provided with that time. Marriage of Clarke and Akel (2018) 19 CA5th 914 See §5.27.
A standard interspousal transfer grant deed meets the requirements of an “express declaration” for purposes of a transmutation under Fam C §852. Marriage of Kushesh & Kushesh-Kaviani (2018) 27 CA5th 449. See §5.28.
Rules of Professional Conduct
The California Supreme Court approved revisions to the Rules of Professional Conduct effective November 1, 2018. The rules were revised and renumbered to reflect the ABA Model Rules system, and several new rules have been added. The relevant changes have been made throughout this title, and in particular in chap 23.
Spousal Support
The statutory limitation on the retroactive modification of temporary spousal support does not limit a trial court’s inherent authority to reconsider and retroactively modify a temporary spousal support order, on its own motion to correct an error. The court need not file a motion prior to such a sua sponte reconsideration. Marriage of Spector (2018) 24 CA5th 201. See §§6.6, 21.2.
